The case, Center for Constitutional Rights et al. v. Chief Judge Lind, was argued by the Center for Constitutional Rights on behalf of itself and a diverse group of media figures: Glenn Greenwald of The Guardian, Amy Goodman of Democracy Now!, The Nation and its national security correspondent Jeremy Scahill, and Wikileaks and its publisher, Julian Assange. Also included are Kevin Gosztola, a civil liberties blogger covering the Manning court martial, and author Chase Madar.

 

In ordinary criminal trials in civilian federal courts, the press has access to daily transcripts of the proceeding, they have access to the parties’ briefs so they can read them beforehand and make sense of what is being said, and the judges publish their orders so people can read and understand judgments. In Manning’s pre-trial proceedings and now the court-martial, none of these documents have been made available to the press on an ongoing basis. Several thousand pages were dumped onto an Army FOIA disclosure site a week into the trial and a day before the government had to file its brief in this federal case. The documents are filled with arbitrary redactions, for instance, the name of the judge is blacked out of all of her own orders.

 

“The trial of the most important whistleblower of our generation will be fundamentally illegitimate if it continues to proceed under the sort of mock transparency we’ve seen thusfar,” said Center for Constitutional Rights attorney Shayana Kadidal, who argued the case this morning on behalf of the petitioners. “It is bitterly ironic for the government to be imposing in this case the kind of mindless secrecy that encourages people to engage in leaks in the first place.

 

Col. Denise Lind, the presiding military judge in Manning’s case, has previously rejected access requests by the Center for Constitutional Rights and The Reporters' Committee for Freedom of the Press on behalf of media organizations including CBS, NBC, ABC, the New York Times and the Washington Post, ruling last April that First Amendment standards do not apply to documents in a court-martial.

 

"At a time when the fundamental democratic principles of transparency, accountability and freedom of the press are under attack, access to court documents and proceedings in the Manning trial is vital for people's right to know what lengths their government will go to maintain secrecy of counter-terrorism wars and occupations abroad," said Katrina vanden Heuvel, Editor & Publisher of The Nation.

 

The same plaintiffs brought suit last May in the military courts of appeals appealing that order. However, after a year of litigation, the highest court in the military system, the Court of Appeals for the Armed Forces, ruled 3-to-2 that it lacked the power to hear claims by media petitioners seeking access to courts-martial. Because Congress has narrowly limited appeals from the military courts to the Supreme Court, that ruling cannot be challenged directly in the Supreme Court.

 

Co-counsel in the case are William Murphy and John Connolly of Zuckerman Spaeder LLP in Baltimore and Professor Jonathan Hafetz of Seton Hall Law School.