Petitioners Challenge "Outrageous Secrecy" of Bradley Manning Trial

If one were to judge the potential for harm to the United States government by the amount of openness at a suspect’s trial, then Washington has much more to fear from Bradley Manning than from alleged 9/11 mastermind, Khalid Sheikh Mohammed.

As we have reported previously, the federal government has published a complete and verbatim transcript of the hearings recently conducted in the case of Mohammed and the so-called “Gitmo 5.” There isn’t a single insult or inquiry that was part of that proceeding that isn’t obtainable by anyone — reporter or citizen.

The same cannot be said, however, of the court martial hearing the case against PFC Bradley Manning. To date, the Department of Defense has kept all documents relating to the Manning prosecution under lock and key and has refused to allow anyone to access those files.

Nevertheless, a few intrepid organizations have tried (so far in vain) to penetrate the thick veil of secrecy shrouding the Manning trial. The Center for Constitutional Rights (CCR) is one of the handful of media and civil rights groups (including Salon’s Glenn Greenwald, who has followed this story since the beginning) that have petitioned the Pentagon for a peak at the Manning dossier.

In its request submitted to the U.S. Army Court of Criminal Appeals, the CCR and its fellow petitioners made the following point of a potential violation of constitutional freedom being perpetrated by the federal government should the secrecy continue:

Although the public may attend portions of Pfc. Manning’s court-martial proceedings (notably excluding Rule 802 conferences), public access to documents has been inexplicably denied in what is arguably one of the most controversial, high profile court-martials since the trial of LT William Calley for the My Lai Massacre in Vietnam, and the most important case involving the alleged disclosure of classified information since the Pentagon Papers. Indeed, the restrictions on access to these basic documents in the case have made it exceedingly difficult for credentialed reporters to cover the proceedings consistent with their journalistic standards and obligations.

And:

These restrictions not only plainly violate the First Amendment and the common law, they undermine the very legitimacy of this important proceeding. 

In defense of their claim of First Amendment abridgement on the part of the Army, the petitioners present the following analysis of First Amendment legal requirements.

The First Amendment requires public access unless the government demonstrates that closure is necessary to further a compelling government interest and narrowly tailored to serve that interest, and the Court makes specific findings that closure is warranted.  The government bears a similarly high burden in attempting to limit public access to documents filed in connection with criminal proceedings…. 

In United States v. Manning, the press and public have not had access to any of the government’s motions, responses to defense briefs, or filings in the case beyond the initial charges – even in redacted form. No transcripts of any proceedings in the case have been published – even for proceedings that occurred in open court. Nor have any orders of the Court been published. The government has not provided – and cannot provide – any legal basis for withholding these documents from the public. Nor does it appear that the Court made any of the requisite findings that could support closing these proceedings or denying access to the documents at issue, or provided notice of such envisioned closures and opportunity to object to the press and public.

Petitioners Challenge "Outrageous Secrecy" of Bradley Manning Trial