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One of the most high-profile, domestic military prosecutions in decades will remain tightly sealed from public view.
An Army appeals court denied a request for public access to military court records in the court-martial of Pfc. Bradley Manning, who was arrested in May 2010 in Iraq for allegedly giving thousands of classified documents to the website WikiLeaks.
The Center for Constitutional Rights filed a petition in May asking the U.S. Army Court of Criminal Appeals to order the presiding military judge to make publicly available the government's motions, court's orders and transcripts of proceedings. The appeals court issued a one-sentence order Thursday providing no rationale for its denial of the organizaton's request.
The New York-based group will appeal the court’s decision to the U.S. Court of Appeals for the Armed Forces, a court staffed by civilian judges. Attorney Shayana Kadidal said the court has taken news media action in military proceedings very seriously in the past.
“The Supreme Court said one major reason we mandate public access to trials is to protect legitimacy and to protect accuracy in fact finding,” said Kadidal, who is the group's senior managing attorney on the Guantanamo Project. “It’s very clear in federal courts that the First Amendment governs access to documents. Out of 13 federal appellate courts, 12 have either said the First Amendment does apply or assume it applies.”
When trials are done without full disclosure, he said, there is a problem with cases seeming legitimate.
“In the Manning case not a single order has been published in document form—the most convenient form,” Kadidal said in an interview. “It has a tendency to make the military trial system seem second rate, which is not in the best interest of the public, the military courts or the government.”
According to the government, the court documents must be sealed because of national security concerns.
But according to Kadidal, military judge Col. Denise Lind read portions of briefs aloud in court indicating that not all of the information is classified. He said it appeared that the government quoted from briefs as well. Kadidal said the judge may have read a complete order in court, but because the documents were not accessible, there's no way to know.
"It’s common sense that a brief that contains facts and legal arguments has a lot more than classified information," Kadidal said. "It's made obvious when [the judge] is reading from documents out loud in the courtroom."
Kadidal said the lack of transparency makes it difficult for journalists to do their jobs because it diminishes interest, hinders accuracy and makes it difficult to get information needed for a balanced story.
In March, the Reporters Committee for Freedom of the Press wrote to the U.S. Department of Defense, urging it to implement regulations providing for timely access to court records during the court martial of Manning. The defense department responded about two months later saying it will refer the Reporters Committee’s letter to the Joint Service Committee on Military Justice. The letter also noted that federal government officials try to defer to the presiding judge's discretion.
The court did, however, grant the defense permission in April to publish redacted versions of court filings online after the government had a chance to review, redact and bring up any concerns with the documents.
More recently, Lind ordered prosecutors to itemize what information they are sharing with, or declining to disclose to, Manning's lawyers.
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