WASHINGTON (CN) - A military appeals court blasted the government Wednesday for guarding records on the court-martial of Pfc. Bradley Manning more closely than it guards terror cases.
Manning's alleged disclosure of diplomatic and warfare secrets to WikiLeaks led to criminal charges that carry a potential life sentence for the young soldier.
The Court of Appeals of the Armed Forces, or CAAF, looked Wednesday at whether the government has violated the First and Sixth Amendment safeguards for a free press and a public trial by choking off
access to filings and transcripts related to Manning's court-martial.
A sea of blue-uniformed soldiers, and with a handful of journalists and Manning supporters in casual clothes, filled the pews of the majestic courtroom.
Eventually, a panel of five judges stepped through regal red curtains to hear the pending case. Though they quickly showed frustratration at the policies preventing disclosure, they also appeared uncertain of their ability to force a change.
Center for Constitutional Rights attorney Shayana Kadidal had barely started his opening arguments about the public's hunger for more information on the case when one of the judges interrupted him.
"Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked.
Kadidal appeared unprepared to answer, noting that the matter had not been disputed.
"It certainly wasn't challenged by the government," he replied.
Other judges had the question in mind as well.
Judge Scott Stucky asked whether the journalists fighting the policy had standing to challenge a restriction that affects the press and public alike.
Kadilal replied that the "fact that the injury is widely shared" did not harm his clients' case.
Guardian columnist Glenn Greenwald, the Nation's Jeremy Scahill, Democracy Now's Amy Goodman, American Conservative contributor Chase Madar, Firedoglake's Kevin Gosztola, Wikileaks and the organization's founder Julian Assange have all petitioned
The Reporters Committee for Freedom of the Press backed their effort in an amicus
, or friend-of-the-court, brief on behalf of 31 news outlets.
"[The] pervasive secrecy underlying the Manning prosecution has reinforced and indeed fueled a theory that the U.S. government keeps far too many secrets in an attempt to evade public oversight of its misconduct," the amicus brief stated.
Judge William Cox wondered whether the solution called for a court-martial analog to the federal court database, Pacer.
Chief Judge James Baker added that this would raise issues of cost and implementation.
Kadilal proposed several possibilities, such as paying stenographers for the cost of copies, transmitting audio of the proceedings online or having the parties release redacted documents on the court's website.
The CAAF, unlike the courts-martial it reviews, makes documents and audiotapes available over the Internet
, Kadilal noted.
Baker ordered the parties to submit written arguments about whether the court has jurisdiction to grant this type of relief.
If the journalists vault procedural hurdles, the judges seem inclined to open court-martial access.
The panel peppered the government lawyer
, Capt. Chad Fisher, about why the executive branch forced the case to go to court rather than devise a system for public access.
"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked, adding that the government chose litigation over "simple and reasonable" solutions.
In an amicus brief, the Reporters Committee for Freedom of the Press pointed out that military commissions at Guantanamo Bay put court records online.
Judge Erdman picked up this point in asking, "If they can do it, why can't you?"
Chief Judge Baker pointed out that journalists, like lawyers, need to read briefings to understand arguments at the live hearings.
"If one didn't have the brief, one would have a pretty uncertain idea of what's going on," Baker said.
Fisher replied that the hearings are "not in a foreign language."
The captain insisted that courts-martial are a "creature of the executive" branch, rather than the judiciary.
While courts must provide prompt access to records, the public can seek executive-branch files only through Freedom of Information Act. Such requests, however, are subject to delays and exemptions. Many news outlets, including Courthouse News, have had their FOIA requests for documents in the Manning case denied.
Instead of publicizing government records, the FOIA statute has ironically closed off access in the Manning case, one judge noted.
Though the trial briefs and transcripts are not under seal, Fisher said that the government has no obligation to make them available.
Judge Erdmann ridiculed that position. "You don't see anything wrong with giving the public the documents, but you don't have to so you're not going to," he said.
Baker highlighted the discrepancy by noting that Fisher, like his courtroom adversary, would get to speak after his allotted time.
"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.
Fisher availed himself of his right to sit down.
In his rebuttal, Kadilal urged the court to simply find that courts-martial have a First Amendment obligation to public access, letting the lower court handle implementation.
Kadilal speculated that Manning's trial judge, Col. Denise Lind, might welcome such a ruling because she supported the media's right to access to court-martial records in a March 2000 essay
for the Military Law Review.
If the CAAF finds that it lacks jurisdiction, Kadilal said he plans to seek emergency relief in federal court. He added that this maneuver might force him to seek a stay of trial, currently slated for Feb. 4, to ensure that it will be sufficiently public.
Such a move would further extend Manning's pre-trial incarceration, on top of the more than 900 days the young soldier has spent behind bars.
His attorney, David Coombs, says
that the military has let the 120-day speedy trial clock expire several times over, and he will seek to penalize prosecutors for the delays at the end of the month.