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Military Appeals Court Rejects Effort by Press to Bring Transparency to Bradley Manning’s Court Martial

A military appeals court has decided journalists and media organizations in a lawsuit being brought by the Center for Constitutional Rights (CCR) do not have standing to challenge the lack of access to court records in the court martial of Pfc. Bradley Manning, the soldier being prosecuted by the military for disclosing information to WikiLeaks.

PFC Bradley Manning

For over a year now, a group, including this journalist, has been pushing for access to court records in the case. The decision is disappointing because it means the United States military will be able to, at their discretion, continue to effectively court-martial not just Manning but all soldiers behind a veil of secrecy.

The Court of Appeals of the Armed Forces (CAAF) found in its 3-2 decision that because Manning himself declined to join the litigation the court was being asked to “adjudicate what amounts to a civil action, maintained by persons who are strangers to the court-martial, asking for relief–expedited access to certain documents–that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial.”

It also effectively concluded the military judge did not have control over the cases he or she is hearing and cannot make decisions on whether to make records in court martial proceedings available to the press and public. It did not side with the government but did not negate the government’s theory that the Judge Advocate General’s office has the authority to release records and any challenge against secrecy should be brought in an Article III court.

One of the judges, who wrote a dissenting opinion, appropriately pointed out in response to this that the judge, Army Col. Denise Lind, appears to be confused about her authority. In the same motion hearing on April 24, 2012, where she ruled the court could not grant the press access to court records, she “approved the publication of defense motions, pursuant to an agreement with the government, on a defense website.”

Later, in the dissenting opinion:

The fact of the matter is there is no rule that states that the documents, filings, evidence, and record transcripts created during an ongoing court-martial do not fall under the authority given to the military judge to exercise control over the court martial and ensure public access to the proceedings. If the plain language of R.C.M. 801 [a military rule] does not expressly provide the authority to control the documents created during the courtmartial process, then surely the rule implies that every military judge has the authority to regulate the release of those documents.

The other dissenting opinion written found a deeper fault in the ruling: the ruling would not only make it harder for the press and public to challenge access in court martial proceedings but it would have a negative impact on the accused’s ability to “review issues of public access.”

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."