Military Signals Partial|Wiki-Secrecy Retreat

FT. MEADE, Md. (CN) - Despite striking transparency gains in the Bradley Manning court-martial, the U.S. military continues to classify and redact key elements of the young soldier's trial from public scrutiny, observers of the case have said.

The trial over the largest intelligence leak in U.S. history was initially expected to be among the most secretive cases. Prosecutors had requested, and received, permission to close as much as one-third of the proceedings to the public.

By the end of the government's case, however, only two prosecution witnesses briefly testified in classified sessions. Several written filings have also been redacted in part or in full.

Steven Aftergood, a transparency advocate who directs the Project on Government Secrecy, said he believes that the "intensity of public interest in this case took [the military] by surprise, and compelled a change in behavior."

Pointing to grassroots efforts to shine a light on the case, he noted that independent journalist Alexa O'Brien created a database of filings and proceedings related the case on her website.

In addition, the Freedom of the Press Foundation spearheaded an "unprecedented" fundraising effort to hire stenographers and make unofficial transcripts of the trial available on their website, he said.

"It eloquently demonstrated public expectations of openness," Aftergood said. "I think the court and the prosecutors may have been shamed into reconsidering their habitual secrecy."

Still, "questionable" secrecy remains, he noted

Though Manning leaked more than 700 Guantanamo detainee assessment briefs (DABs), prosecutors have charged him only with five of these disclosures, and the identities of those five prisoners remain classified.

"Classification of the names of the Guantanamo detainees seems questionable, particularly because all names of detainees have now been declassified in other contexts and disclosed," Aftergood said. "It is not clear what damage could result from their identification here."

Shayana Kadidal, a lawyer for the Center for Constitutional Rights, noted that The Guardian, The New York Times and other major outlets joined WikiLeaks in publishing these briefs.

The decision to treat them as sensitive reflects "the ridiculous, reflexive nature of secrecy that has surrounded the Manning trial," Kadidal said.

A prominent civil liberties group, the Center for Constitutional Rights represents WikiLeaks and its chief, Julian Assange. It sued the military in Baltimore on behalf of several journalists to guarantee contemporaneous access to transcripts, filings and rulings related the case.

To settle the federal action, the military agreed to provide prompt access to documents and redacted transcripts of closed court sessions through its online Freedom of Information Act "Reading Room." Some of these documents, however, experience lengthy delays before their redacted release.

By contrast, prosecutors have publicly identified the 117 diplomatic cables that they selected to represent the potential danger of the more 250,000 that Manning exposed.

The rationale behind their selection nevertheless remains a secret.

Ambassador David Pearce's testimony about a selection of the charged cables has been redacted in its entirety, under an exemption protecting classified information.

This use of secrecy "could conceivably be justified, at least in part," Aftergood said.

"Sometimes damage to national security can be compounded by explicitly describing it," he added. "But even here, one would think that partial disclosure might have been possible."

Victor Hansen, an associate dean at New England Law Boston, speculated that the military court might have been caught unprepared for the case's classification issues.

"Military courts do not try that many cases involving classified evidence, and judges are not very experienced in these cases, so their inclination is to be cautious and deferential to the government," Hansen said.

Historically, "information the government claims needed protecting had nothing to do with national security interests," the professor added.

Hansen pointed to the case of U.S. v. Reynolds, in which the Supreme Court first recognized the state secrets privilege.

In that case, widows of three employees of a U.S. Air Force contractor sued the government to produce accident reports concerning a 1948 plane crash. Uncle Sam told them that release of the documents would threaten national security.

A six-justice majority of the U.S. Supreme Court deferred to the government's claims in 1953.

When finally declassified nearly 50 years later, the report revealed that a fire in the engine had caused the crash and the document contained no sensitive information about the plane's supposedly secret equipment, reporter Barry Siegel wrote in his book "Claim of Privilege."

Kadidal noted how the Supreme Court also "repeatedly said that openness affects outcomes by making trials more accurate at determining the truth." This precedent would help Manning challenge any of his possible convictions, he added.

Referring to the Manning case, Hansen said: "I think as the case went on it became clearer that much of the secret evidence was not in fact secret at all."

Manning's court-martial continues Thursday with a ruling on his motion to dismiss certain charges, including "aiding the enemy." Prosecutors will then present their rebuttal case. It is unclear how much, if any, of the new testimony and evidence will be classified.

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