“Why can’t you be reasonable?” judge asks military in case to limit secrecy in Bradley’s trial

The CCR argued its case at the Court of Appeals for the Armed Forces today for transparency in Bradley Manning’s court-martial trial. Judges questioned why the government forced the issue to come to court at all.

By Nathan Fuller. October 10, 2012.

The CCR’s Shayana Kadidal

During oral arguments in the Center for Constitutional Rights’ lawsuit against the government seeking public access to basic court documents in Bradley Manning’s court-martial trial, judges for the Court of Appeals of the Armed Forces demanded the government explain why it wouldn’t simply provide these documents in the first place.

When Army lawyer Capt. Chad Fisher said that the court wasn’t constitutionally required to provide public access to documents like prosecution briefs, transcripts, and rulings, Judge Margaret Ryan interrupted him to ask what she called a “common sense” question.

“Why can’t you just give it to them? Instead of making this a constitutional case, why can’t you just be reasonable?”

Fisher was unable to directly answer the question. Instead, he gave an array of responses that circumvented the basic issue: he repeated his belief that the court wasn’t obliged to make these records public, he said the fact that the public could attend the hearings meant they were “open,” he complained that the defense wasn’t asking the proper authority, and he reiterated the government’s position that the availability of FOIA provided sufficient public and press access.

The five judges repeatedly questioned and challenged each of Fisher’s points, particularly the idea that FOIA requests, to which the government frequently takes weeks, months, or even years to respond, provided sufficient and contemporaneous access, especially considering the fact that FOIA requests in this case have already been denied. They also pushed back on Fisher’s claim that “Nothing has been withheld” from the public and the press, based on the idea that attending the hearings amounts to fully accessing the proceedings.

“How is oral argument sufficient if you can’t read the briefs?” one judge asked.

“It’s not as if they’re speaking a foreign language,” Fisher responded.

But as journalists from the 30 major media outlets who submitted a supportive brief in this case explained, the media (and therefore the public) needs these documents to adequately cover the case:

“Journalists rely heavily on court documents to gain and provide to readers the background of and context surrounding a legal controversy — awareness and understanding of which is often necessary to accurately report on the dispute. Prior access to the materials also allows reporters, the overwhelming majority of whom have no legal background or education, to process the oftentimes complex legal theories at their own pace, or to interview a legal expert who could explain the issues, so they are better equipped to understand what is transpiring in a proceeding they attend.”

Shayana Kadidal, the CCR lawyer arguing in court today, similarly contended earlier this year that providing openness-in-name-only effectively “choked off” coverage of Manning’s hearings.

But the judges, not seemingly satisfied with Fisher’s responses, kept returning to the more elemental point that the government could avoid this litigation and a potential ruling that would affect courts-martial to come by simply turning over the documents requested. The court already has a process in place to redact documents, the judges noted, and parties settle extrajudicial matters with a compromise out of court all the time, so it seems perfectly feasible for the government to comply with the CCR’s reasonable request for access to the documents.

In the midst of this questioning, Fisher did concede what the CCR has long observed: that Guantanamo tribunals – hardly beacons of transparency – were less secretive than Bradley Manning’s court-martial, because the public could access filed briefs and transcripts to those proceedings.

The CCR’s Kadidal fielded a similar though not quite as lengthy barrage of questioning from the appeals court judges. The first issue they raised was whether this court even has jurisdiction to make a ruling on this case, as their jurisdiction has been narrowly limited and it isn’t clear that they have standing to make a ruling that affects the press and public alike. Kadidal responded that the government hadn’t raised this issue in their replies, and so he would need an additional 10 days to file a supplement that addresses the court’s jurisdiction.

Judge Ryan also wanted to know whether there was precedent for this court to compel the production of documents that didn’t yet exist. She was referring to the CCR’s request for transcripts of RCM 802 conferences, the private telephonic meetings Judge Denise Lind holds between Ft. Meade hearings with both the defense and the prosecution. She also wanted Kadidal to account for how exactly the documents would hypothetically be produced: who would transcribe the hearings, or who would pay a stenographer?

Kadidal responded that an audio file would be acceptable, but on the issue more generally, he said he believes the court should make a First Amendment ruling granting the press the right to these documents and let lower courts adjudicate the logistics. Judges replied that it was unclear that the First Amendment affords contemporaneous access to these documents: in other words, it might be wholly constitutional for the court to provide these documents after the fact.

Kadidal will submit his jurisdictional supplement in 10 days, and the government will submit a reply less than a week later. It’s unclear when or if this court will issue a ruling, or when exactly the parties might return to court. We’ll update our coverage of this case as it unfolds.

7 thoughts on ““Why can’t you be reasonable?” judge asks military in case to limit secrecy in Bradley’s trial

  1. ‘ … the government could avoid this litigation and a potential ruling that would affect courts-martial to come … ‘

    I was wondering where what seemed to be five (5!) judges supportive of the American public’s right to know were found, until I read the corrective above… they’re afraid these stupidly tight-assed prosecutors are going to blow the whole illegal ‘military court’ racket wide-open ,,, and these five are saying ‘not in my court’ … please!

  2. The reason the government does not want the public to have access to their pleadings is when you can actually SEE the disingenuous arguments in print, you can refute on a point-by-point basis the fallacy of their arguments and the mendacious nature of the case.

  3. It seems to me that its not just Brad Manning that is on trial. It is the whole US criminal and political system.

    Bradley Maning,
    You have hundreds of supporters here in Australia.

  4. They don’t want the documents released because they do have something to conceal. Why else are they so adimate on not making this information public.I find it irritating that the us government isn’t put in bloody goal instead of the Bradley Manning,and they should also leave Julian Assange alone to. All I can say is when injustice becomes law rebellion becomes duty.

  5. Flyer For The Smedley Butler Brigade- Veterans For Peace 2012 Veterans Day/Armistice Day Commemoration And March –Sunday November 11 in Boston At Noon

    President Obama Pardon Private Bradley Manning Now!

    Free The Alleged Wikileak Whistleblower Now!

    Photo in uniform (color) from Wikipedia- http://upload.wikimedia.org/wikipedia/commons/5/5d/Bradley_Manning_US_Army.jpg

    Bradley Manning in his own words:

    “God knows what happens now. Hopefully worldwide discussion, debates, and reforms…

    I want people to see the truth… because without information, you cannot make informed decisions as a public.”
    *************
    The Smedley Butler Brigade of Veterans for Peace proudly stands in solidarity with, and defense of, Private Bradley Manning and his fight for freedom from his jailers, the American military.

    Private Manning is facing a February 2013 court-martial for allegedly simply blowing the whistle on something that is a hard fact of war- war crimes by American soldiers through release of the “Collateral Murder” tape and what have become known as the Iraq and Afghan War logs.

    Private Manning has paid the price for his alleged acts with almost 900 days of pre-trial confinement, including allegations of torture during this period, and is now facing life imprisonment for simple acts of humanity. For letting the American people know what they perhaps did not want to know but must know- when soldiers, American soldiers, go to war some awful things can and do happen.

    For more information about the Private Manning case and what you can do to help or to sign the online petition to the Secretary of the Army for his release contact:

    Bradley Manning Support Network: http://bradleymanning.org/ or the Courage To Resist Website:http://www.couragetoresist.org/

    Smedley Butler Brigade- Veterans for Peace Website: http://smedleyvfp.org/ – on Facebook: http://www.facebook.com/smedleyvfp -on Twitter: http://twitter.com/SmedleyVFP#

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