Government argues FOIA would provide sufficient access to Manning court-martial documents

Emily Miller | Newsgathering | News | July 10, 2012

The federal government asked the U.S. Court of Appeals for the Armed Forces on Monday to become the third court to deny the public access to military court documents in the court-martial of Pfc. Bradley Manning. The government’s argument: the Freedom of Information Act is the proper method to obtain the materials.

“Here, appellants have an adequate remedy under the Freedom of Information Act (FOIA) to request access to these court-martial documents,” the government wrote. “This Court should likewise deny appellants’ request for [access to the documents] because FOIA is the proper vehicle for obtaining records from the United States agencies.”

The Center for Constitutional Rights and other First Amendment and media organizations asked the appellate court to order the military judge to make publicly available the government's motions, court's orders and transcripts of proceedings in the court-martial of Manning. The Army private was arrested in May 2010 in Iraq for allegedly giving thousands of classified documents to the website WikiLeaks.

Last month, a lower Army appellate court, the U.S. Army Court of Criminal Appeals, denied without explanation an identical request from the groups. According to the government, the court documents must be sealed because of national security concerns. The center then appealed that court’s decision to the U.S. Court of Appeals for the Armed Forces, which is staffed by civilian judges.

The government argued that the New York-based center, along with the other petitioners, failed to meet the first two conditions for the requested relief.

Court-mandated access “is appropriate only when no other adequate remedy is available,” according to the government. “Utilizing the Supreme Court’s standards for granting extraordinary relief, appellants fail to meet the first criteria because they can obtain their requested relief, public access to court-martial documents, through the FOIA.”

The government also argued that the appellants have no legal basis to claim the FOIA is inadequate because they have not used it as a means of access.

“To the extent appellants seek access to motions, pleadings, and orders admitted and discussed in open court (i.e., never sealed), appellants have never been ‘denied’ access to these documents because they have yet to request them from the proper release authority,” according to the government.

Citing the Supreme Court’s decision in Nixon v. Warner Communications, Inc., the government contends that the appellants do not satisfy the second condition for extraordinary relief because they cannot show that the First Amendment indisputably requires real-time access to court-martial documents.

In Nixon, the U.S. Supreme Court recognized a common-law right “to inspect and copy public records and documents, including judicial records and documents.” Although the Court held that this right is not absolute, and the decision about whether to grant access to the documents is best left to the discretion of the trial court, many lower courts after Nixon have recognized a constitutional right of public access to civil records.

Shayana Kadidal, the center's senior managing attorney on the Guantanamo Project, said media organizations have filed FOIA requests for the information but were denied.

"It is frankly astonishing that the Obama administration is making members of the press work so hard to get access to unclassified transcripts of a court-martial proceeding happening half an hour away from Washington when the transcripts of military commissions at Guantanamo are released before the court sessions have even concluded," said Kadidal, who added that the center's reply brief will be filed on Friday.

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.

Related Reporters Committee resources:

· News: Redacted court documents could be released in heavily sealed Bradley Manning case

· NM&L: The future of government leakers

· News: Prosecution nears completion of case against Manning

· News: Prosecution, defense rest in Manning hearing

· Release: Reporters Committee urges Defense Department to improve record access during Manning court martial