April 17, 2013, New York – Today, the Court of Appeals for the Armed Forces (CAAF) rejected claims in a lawsuit by the Center for Constitutional Rights challenging government secrecy around the court martial of Pfc. Bradley Manning. The suit, bought on behalf of a group of journalists, asked the court to ensure members of the press and public have access to court documents and transcripts in the case and challenged the fact that important legal matters in the pre-trial proceedings have been argued and decided in secret. The court rejected the claims on the grounds that military appellate courts lack jurisdiction to address the scope of public access until a trial is over and the sentence has been issued. The decision was 3-to-2, issued over two vigorous dissents.
"Today’s decision flies in the face of decades of First Amendment rulings in the federal courts that hold that openness affects outcome – that the accuracy of court proceedings depends on their being open," said Center for Constitutional Rights Senior Attorney Shayana Kadidal, who argued the case. "Bradley Manning's trial will now take place under conditions where journalists and the public will be unable as a practical matter to follow what is going on in the courtroom. That ensures that any verdict will be fundamentally unfair, and will generate needless appeals afterwards if he is convicted.”
The majority's decision ensures that no appellate military court will be able to review a decision of a trial judge denying public access to proceedings until after the proceedings are over. As a result, a military trial judge could exclude the public from being present in the courtroom – in violation of existing military law – and there would be no place for members of the public to appeal that decision within the military court system.
The dissenting judges wrote that this decision "leaves collateral appeal to [civilian] courts as the sole mechanism to vindicate the right to a public trial ... beyond the initial good judgment of the military judge. This is unworkable and cannot reflect congressional design or presidential intent."
Today’s ruling is likely to also apply to proceedings in the upcoming court-martial trials of accused Ft. Hood shooter Maj. Nidal Hasan and of Staff Sgt. Robert Bates, who is accused of massacring civilians in Afghanistan.
Plaintiffs in the case, in addition to the Center for Constitutional Rights, are journalists Glenn Greenwald, Amy Goodman, Democracy Now!, Jeremy Scahill, The Nation magazine, Julian Assange, Kevin Gosztola, and Chase Madar.
Attorneys are considering options for appeal to the civilian federal courts. Bradley Manning’s trial is scheduled to start June 3, 2013.