The defense for Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, has tried to put a halt to secrecy in Manning’s court martial proceedings by making court filings available to the public and the press. The government, however, remains opposed to efforts to make the proceedings more transparent. And now, as the defense moves to address concerns that the proceedings are happening in secret, the government plans to interfere with the defense’s release of its filings and force the defense to make redactions.
Manning’s defense lawyer David Coombs reports in an update:
Our office has received several inquires regarding access to court filings by the parties. The Reporters Committee for Freedom of the Press and the Center for Constitutional Rights have both submitted letters indicating that the public is not adequately being informed of the proceedings. Each organization has stated that the lack of accessibility to court filings promotes the perception that issues are being decided behind closed doors. The organizations also believe the lack of transparency undercuts the public’s confidence in the fairness of the military justice system.
The Defense, in an effort to address the above concern, has requested authority to publish its motions and the Government’s responses on our website. The Government has opposed this request. The Court has issued an Interim Order that the Defense may publish appropriately redacted versions of its motions, but only after the Government is provided with an opportunity to review the redacted filings and raise any objection with the Court.
The update then adds the defense is redacting motions filed on March 16 during a two-day motion hearing and motions more recently filed on March 29 and 30 (one of them includes a motion to dismiss the “aiding the enemy” charge). These “redacted motions” are to be submitted to the court and government on April 2. The government will have until April 17 to object to the “redacted filings.” If objections cannot be resolved, the filings will not be released and the matter will be deliberated during the next hearing that is scheduled for April 24-26. [cont’d.]
The Reporters Committee for Freedom of the Press (RCFP) sent their letter requesting the US Defense Department grant the press access to court filings on March 12. The Center for Constitutional Rights (CCR) sent their letter demanding access on March 22. Eighteen days later, the Defense Department and the government still refuse to make all filings available to the press and public, as should be done in a public trial.
CCR President Emeritus Michael Ratner notes the list of motions from March 16 that are going to be redacted. “You and I sat in court and heard most of this stuff,” he tells me. “Why can’t we see the motions? We heard them making the motions?” Why are they going through a process of redaction? It isn’t like they are classified. [Note: Here is my coverage of the motion hearing.]
On top of that, the court is forcing the defense to go through a “cumbersome process” and, in the end, the press and public are not going to get the judge’s orders or the government’s responses to the defense filings.
“It’s not like it’s up to the individual defense counsel or government lawyer to decide what the public should have,” Ratner says. “I find it completely outrageous that we are not getting both the government and the defense filings.” He adds, “It is worse than nothing if the court or the government thinks this is what’s required by a public trial.”
There’s another layer of absurd and inappropriate secrecy. An interim order was issued by the court on the release of the material. The defense made a request for the “authority” to release court filings. But the interim order is not being made public. The press and public are not going to be able to see the content of the order. The press and public also are not going to get to see the defense’s request for the “authority” to release court filings.
Furthermore, there is no way for any member of the press or public to know what the judge determined, like why she is not forcing the government to make public its filings. There is also no way of knowing what the court might have suggested be redacted from the defense motions. The press and public have no idea what criteria the defense is going to apply when redacting motions.
The government is setting itself up for another moment where it will be shown to be engaged in, as the American Civil Liberties Union (ACLU) might say, “excessive secrecy in defiance of all reason.”
Back in December of last year, the State Department finally released US State Embassy cables previously released by WikiLeaks that the ACLU wanted released through a Freedom of Information Act (FOIA) so they would be cleared to use the material in their work. The State Department redacted some of the sections. That was no problem because the cables were available on the WikiLeaks website (and in other locations) to read. So, what the State Department did is give the ACLU insight into what the State Department would like to hide and avoid taking responsibility for publicly.
This is a similar situation. The press and the public sat in court. Although the documents are not available, the documents were read publicly. The press and the public took notes. Some even tried to keep up and make a transcript so there would be a record, since the government has a commitment to ensuring there is secrecy in the proceedings. So, when the defense filings are finally made public, the press and public will be able to report what the government and judge don’t want the press and public to be able to access and read.
This excessive secrecy under the “Most Transparent Administration Ever” only contributes to the case for WikiLeaks. It also shows why working outside the system may be the only way to challenge government secrecy.
It is almost certain that this matter will be litigated in court because legal fun and games are happening and such games are unfair to any soldier on trial, especially those on trial for “aiding the enemy, ” which the government has stated is Al Qaeda, Al Qaeda in the Arabian Peninsula (AQAP) and any associated terror groups.
Ratner concludes they “want to convict Manning in secret.” The government and judge “seem to want to do it,” which is unacceptable. It is illegal under our Constitution and under international law.
“They are giving us a little peek and they are going to claim that’s complying with public trial. And it doesn’t.”