Members of the nation’s highest military court questioned Wednesday whether they have the authority to decide a legal challenge to the pervasive secrecy of documents in the court-martial of an Army private accused of the largest leak of classified information in U.S. history.
The U.S. Court of Appeals for the Armed Forces in Washington asked lawyers for each side to submit additional briefs explaining why the military court system, rather than civilian courts, has jurisdiction to hear the case. The panel of five civilian judges did, however, allow the attorneys to argue the central dispute: whether the sealing of transcripts, motions, briefs, orders and other documents filed in the military prosecution of Pfc. Bradley Manning infringes the First Amendment-based right of public access to judicial proceedings and records.
Although hearings in the court-martial of Manning, who was arrested in May 2010 in Iraq for allegedly disclosing thousands of classified documents to the website WikiLeaks, have generally been open, such public access is virtually meaningless if journalists and others cannot view the documents filed in connection with the proceedings beforehand, a group led by the Center for Constitutional Rights argued in its request that the records be unsealed.
The presiding military judge denied the request, and an intermediate military appellate court affirmed that ruling. The Reporters Committee for Freedom of the Press, joined by 30 news media organizations, filed a friend-of-the-court brief with the Armed Forces appellate court in support of the request.
“It’s not like they’re speaking a foreign language in court,” Army Capt. Chad M. Fisher, who represented the government, said during Wednesday’s hour-long oral arguments.
Fisher argued that because court-martial documents belong to the Judge Advocate General's Corps, the military’s legal branch, and are not judicial documents, the federal Freedom of Information Act is the only means by which the public may view them — an assertion some of the judges seemed to doubt.
“Has Congress decided that [FOIA] is the exclusive process?” Judge Margaret A. Ryan asked. “Has Congress said you cannot make a brief with unclassified information affirmatively available?”
Although the court seemed skeptical of the contention that a military judge does not have custody and control of the documents filed in his or her courtroom, many likewise seemed reluctant to acknowledge that the well-established constitutional right of public access to judicial proceedings and documents extends to court-martial records, noting that neither the U.S. Supreme Court nor their own court has ever ruled as such.