Military court to review tight secrecy in Bradley Manning case

A civil liberties group plans to tell a military appeals court tomorrow that the U.S. Army has unconstitutionally restricted public access to the case against alleged Wiki-leaker Bradley Manning.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
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A military appeals court will be asked tomorrow to decloak the prosecution of Bradley Manning, an Army private accused of handing thousands of classified documents to Wikileaks.

Prosecutors have insisted on intense secrecy in the case. No transcripts of the legal proceedings have been published. No court orders have been disclosed. To date, even the government's written legal arguments remain off-limits to the public.

Alleged Wiki-leaker Bradley Manning
Alleged Wiki-leaker Bradley Manning

So far, at least, military courts have been perfectly happy to accede to those requests in Manning's court martial. A trial judge, Denise Lind, rejected requests for access to the records, as did the Army Court of Criminal Appeals in a one-sentence order in June.

"It's pretty ironic that the KSM trial is being conducted under a great deal more transparency," Shane Kadidal, senior managing attorney at the New York-based Center for Constitutional Rights, told CNET this afternoon. A trial for KSM -- also known as Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks -- is scheduled to begin next week.

The next step in this case takes place at 10:15 a.m. ET in Washington, D.C. tomorrow, when the U.S. Court of Appeals for the Armed Forces is scheduled to hear arguments that the First Amendment grants the public (and the press) greater access to the case against Manning. Unlike the lower courts, this one is composed of judges who are currently civilians, not military officers, although they tend to have prior military experience.

"These restrictions not only plainly violate the First Amendment and the common law, they undermine the legitimacy of this important proceeding," Kadidal wrote in a legal brief (PDF). "These violations are particularly egregious in light of the First Amendment's mandate that even temporary deprivations of the right of public access constitute irreparable harm."

Manning's court martial is set to begin in February 2013. Last year, the military slapped him with an additional 22 charges, including alleging that Manning caused "to be published on the Internet intelligence belonging to the United States government."

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In a fiery appearance at a press conference through a video link last month, Wikileaks editor Julian Assange lashed out at the U.S. government, saying it has taken "arbitrary and excessive action" against the document-leaking Web site and Manning.

The Army wants, Assange said from his room at the Ecuadorian embassy in London, "to break him, to force him to testify against WikiLeaks and me" -- an apparent reference to the Justice Department's investigation taking place in conjunction with a federal grand jury in Alexandria, Va.

For their part, military prosecutors say that the proceedings have complied with the First Amendment, and that if CCR or other organizations want specific documents, they can file requests under the Freedom of Information Act.

Cpt. Chad Fisher, a prosecutor in the Army's Office of the Judge Advocate General, wrote (PDF) that "the First Amendment public trial right is not absolute, and does not extend to all parts of a trial." It's sufficient, Fisher said, that the public is given an "unencumbered presence" at Manning's court martial and earlier proceedings.