Center for Constitutional Rights et al. v. United States & Lind, Chief Judge Historic Case

At a Glance

Current Status 

On April 16, 2013, the Court (in a 3-to-2 decision over two dissents) ruled that it lacked jurisdiction to consider our claims.

Date Filed: 

May 24, 2012

Co-Counsel 

Jonathan Hafetz, Seton Hall Law School

Case Description 

CCR v. United States is a petition for extraordinary relief requesting that the Army Court of Criminal Appeals order the Judge in the court martial of alleged Wikileaks leaker PFC Chelsea Manning to grant the public and press access to the government’s motion papers, the court’s own orders, and transcripts of proceedings, none of which have been made public to date.  In addition, the petition challenges the fact that substantive legal matters in the court martial – including a pretrial publicity order – have been argued and decided in secret.

The courtroom at Ft. Meade, Maryland where pretrial proceedings in Manning’s case are being held has generally been open to interested members of the public. But the several dozen members of the public and media who can make it to the courtroom in person are the only ones able to hear what is happening on a given day, because no transcripts are ever released. As one of the declarations we filed in this case notes, even the media are forced to resort to comparing notes during the breaks because of the lack of a transcript. Obviously, there can be no possible national-security justification for not publishing a transcript when anyone from the public can walk into the hearing and hear the same proceedings.

The difficulty of reporting on the proceedings is multiplied by the fact that the government's briefs on the motions being argued each day in court are also off limits to the rpess and public. Even the court's own orders have not been released (although several times the judge has read her orders into the record -- sometimes so rapidly that she needed to ask for a glass of water).

CCR has written two letters to the trial court asking for improved public access to the proceedings and specifically seeking release of the transcripts, filings, and court orders. The Reporters' Committee for Freedom of the Press also made the same request on behalf of forty-seven media organizations including CBS, NBC, ABC, the New York Times and the Washington Post. On April 24, 2012, the presiding judge, Col. Denise Lind, rejected our requests. Our petition seeks an extraordinary writ from the Army’s highest appeals court to force Judge Lind to comply with our requests and the First Amendment in releasing these documents to the public.

While every one of the twelve federal appellate circuits to consider the question has found that the First Amendment demands the maximum practicable degree of access to documents, Judge Lind has stated that the military courts of appeals have not done so. As a consequence, the military commissions at Guantanamo (which operate under a newly-written set of rules) provide in many ways a greater degree of public access than the court-marital of Chelsea Manning does here in the United States. For instance, the first transcripts of Khalid Sheikh Mohammed’s arraignment were posted on the Defense Department's military commission website even before the epic thirteen-hour session was over, and the military commission rules mandate that unclassified transcripts and other documents be posted within a day -- and that even where classified information needs to be redacted out, the government must post public versions of the documents within fifteen days.

The petitioners include CCR itself and a diverse group of media figures: Glenn Greenwald, 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, co-author of Truth and Consequences: The U.S. vs. Bradley Manning and a civil liberties blogger covering the Manning court martial, and Chase Madar, author of The Passion of Bradley Manning and a contributing editor to The American Conservative.

CCR attorney Shayana Kadidal’s blog post on the issues is available here.

Plaintiff Kevin Gosztola reports on the Manning case, including public access issues, at the FireDogLake blog, here and here.

Case Timeline

April 16, 2013
The CAAF rules, by a 3-to-2 vote, that it (and indeed all the military courts of appeal) lack jurisdiction to hear claims of the press or public seeking access to court-martial proceedings.
April 16, 2013
The CAAF rules, by a 3-to-2 vote, that it (and indeed all the military courts of appeal) lack jurisdiction to hear claims of the press or public seeking access to court-martial proceedings.
March 4, 2013
CCR supplements the record with an additional declaration of Kevin Gosztola, describing continuing problems with access to the proceedings.
March 4, 2013
CCR supplements the record with an additional declaration of Kevin Gosztola, describing continuing problems with access to the proceedings.
June 26, 2012
CCR files an appeal to the Court of Appeals for the Armed Forces.
June 21, 2012
The Army Court of Criminal Appeals denies the petition in a one-sentence order, giving no explanation of its reasoning whatsoever.
June 21, 2012
The Army Court of Criminal Appeals denies the petition in a one-sentence order, giving no explanation of its reasoning whatsoever.
May 30, 2012
Army Court of Criminal Appeals orders government to respond to our brief by June 8, 2012.
May 30, 2012
Army Court of Criminal Appeals orders government to respond to our brief by June 8, 2012.
May 24, 2012
CCR files this case in the Army Court of Criminal Appeals.
April 24, 2012
Judge Lind notes that she has received CCR's letters into the record, and that CCR has sent an attorney to argue on behalf of public access in the case and seeks to intervene to seek such access -- and that that motion to intervene "is denied."
April 24, 2012
Judge Lind notes that she has received CCR's letters into the record, and that CCR has sent an attorney to argue on behalf of public access in the case and seeks to intervene to seek such access -- and that that motion to intervene "is denied."
April 23, 2012
Having heard nothing in response to the first letter, CCR sends a second letter to the trial court via defense counsel David E. Coombs.
April 23, 2012
Having heard nothing in response to the first letter, CCR sends a second letter to the trial court via defense counsel David E. Coombs.
March 21, 2012
CCR sends a letter demanding access to secret conferences (Rule 802 conferences) where issues are argued and decided out of public view, and to the documents in the case.
March 21, 2012
CCR sends a letter demanding access to secret conferences (Rule 802 conferences) where issues are argued and decided out of public view, and to the documents in the case.
March 12, 2012
Reporters' Committee for Freedom of the Press sends a letter on behalf of 47 news organizations to Jeh Johnson, General Counsel of the Department of Defense, requesting that DoD apply the same rules for media access to party filings and court orders in Chelsea Manning's case as apply in the Guantanamo military commissions.
March 12, 2012
Reporters' Committee for Freedom of the Press sends a letter on behalf of 47 news organizations to Jeh Johnson, General Counsel of the Department of Defense, requesting that DoD apply the same rules for media access to party filings and court orders in Chelsea Manning's case as apply in the Guantanamo military commissions.