JURIST Guest Columnist Philip D. Cave, a solo practitioner at the The Law Offices of Philip D. Cave, argues that the lack of transparency in the WikiLeaks court-martial case undermines the reliability of the verdict...
ave US military courts achieved the same level of transparency we have come to expect of criminal prosecutions in federal and state courts in the US? That's an underlying question presented in Center for Constitutional Rights, et. al. v Lind, Military Judge
, a writ-appeal petition now pending with the Court of Appeals for the Armed Forces
(CAAF). The petition is an outgrowth of United States v. Bradley Manning
. Pfc. Bradley Manning is undergoing a general court-martial for violating various federal and military laws under the Uniform Code of Military Justice
(UCMJ) for unauthorized access to classified materials and for giving those materials to WikiLeaks
Now, the public and media want contemporaneous access to unclassified written court filings, judicial orders and evidentiary documents that are in the record.
Under the Rule for Courts-Martial 806 [PDF], every court-martial accused is entitled to a public trial. The public and media can attend open sessions of court — of that there is no question and there has been no issue. Additionally, Military Rule of Evidence 505 [PDF] creates a privilege and establishes procedures related to classified information. The rules generally track with the Classified Information Procedures Act. Yet, a different question remains: how public must that trial be? Does the right to a public trial extend to providing copies of court documents in real time? In Manning, the military judge and the US are denying the media copies of court documents, even those that are likely unclassified. Manning's defense counsel is releasing copies of his own filings "with authorization."
On June 21, 2012, the Center for Constitutional Rights (CCR) filed a petition for an extraordinary writ with the Army Court of Criminal Appeals (ACCA) for access to these documents. Although a writ appeal petition is still pending before the ACCA, the court issued an order requesting copies of "the docket sheet, all motions and responses thereto, all rulings and orders, and verbatim transcripts or other recordings of all conferences and hearings before the court-martial...[and the] ruling and analysis of the military judge regarding the request for the above-referenced matters[.]" CCR has posted an explanation of the proceedings to its website.
The US argues that document requests related to Manning must use utilize the process provided under the Freedom Of Information Act (FOIA). CCR has counter-argued that FOIA is a cumbersome process that delays timely access to material of current public interest about an ongoing military justice case. The issue is not limited to Manning, but occurs with some frequency in courts-martial of high public interest, such as United States v. Hasan (Maj. Nidal Hasan is accused of the November 5, 2009, on-post shootings at Fort Hood) and United States v. Bales (Sgt. Robert Bales is alleged to have perpetrated a mass shooting in Afghanistan). In this regard, the Reporters Committee for Freedom of the Press has delved into the lack of transparency [PDF] in court-martial cases.
Those familiar with Public Access to Court Electronic Records (PACER) might wonder: why the secrecy, or rather, the lack of transparency? The Department of Defense (DOD) does not make trial documents available to the public nor does it subscribe to PACER. Records related to courts-martial are only available to the public through a FOIA request. Recently, the US Army has taken the position that even a convicted defendant won't automatically receive a copy of his own trial records absent a FOIA request. Most military appellate decisions are available at appellate court websites, including the ACCA and the CAAF. In 2011, the CAAF began limited uploading of briefs for pending oral argument cases in which a petition for review has been granted.
The Manning case has garnered public interest around the world and it has led to the formation of the Bradley Manning Support Network. The notoriety of the case is no doubt linked to issues surrounding Julian Assange. Most recently the UN Special Rapporteur on Torture [PDF] has weighed in on the subject. Consequently, CAAF's interest in the issue is not surprising. However, it is likely that the court will deny the writ-appeal petition. They will pass the ball back to the DOD, perhaps with language that suggests the DOD needs to get into the nineteenth century &mdash never mind the twentieth century or joining PACER.
It is a bedrock principle of military justice established under United States v. Berry that it "not only be a fair system of criminal justice, but that it always be perceived as fair." The US Army and the DOD response to document requests in Manning continues to give an unfavorable impression of transparency compared to how the media and public have access to information about ongoing civilian criminal trials. The military will continue to be criticized about "secret trials" in an already arcane system of law, and the courts will likely abstain from making an enforceable decision.
Philip D. Cave practices in the field of military law as a solo practitioner. He graduated from Wright State University in Political Science, earned his law degree at Case Western University and a Masters of Law at George Washington University. He has served a tour of duty at the Naval Legal Service and the Judicial Advocates General of the Navy.
Suggested citation: Philip Cave, How Public of a Trial: US v. Bradley Manning, JURIST - Sidebar, Aug. 17, 2012, http://jurist.org/sidebar/2012/08/philip-cave-manning-public.php
This article was prepared for publication by Jordan Barry, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org