WASHINGTON (CN) - Journalists fighting the secrecy cloud over the trial of WikiLeaks source Bradley Manning found no relief from the military's highest court.
The Center for Constitutional Rights along with several journalists, including WikiLeaks founder Julian Assange, asked the court to ensure members of the press and public have access to court documents and transcripts in Manning's case.
With Manning facing a possible life sentence for the charges against him, about a third of the upcoming trial is expected to be held behind closed doors. The trail is set to begin on June 3, 2013.
Manning, a 25-year-old private first class, admitted in late February to having sent the secret-busting website the largest intelligence trove in U.S. history.
The leaked filed included hundreds of thousands of incident reports from the Iraq and Afghanistan wars, Guantanamo detainee profiles, and, most famously, footage of a Baghdad airstrike.
Last year, Col. Denise Lind, the military judge presiding over Manning's trial, declined to grant media outlets open access to government records and judicial opinions in the case. The case went to the Court of Appeals for the Armed Forces after the U.S. Army Court of Criminal Appeals affirmed Lind's decision in June.
At a hearing to have the military appeals court widen public access to these proceedings, the five-judge panel questioned whether they had jurisdiction to grant such relief.
Though the judges seemed to see the merit in ordering transparent proceedings, they killed the appeal, 3-2, Wednesday on jurisdictional grounds.
"Here, the accused has steadfastly refused to join in the litigation, or, despite the Court's invitation, to file a brief on the questions presented," Judge Scott Stucky wrote for the majority. "We thus are asked to adjudicate what amounts to a civil action, maintained by persons who are strangers to the court-martial, asking for relief expedited access to certain documents that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial."
The majority distinguished Manning's court-martial from that of the 1997 case ABC Inc. v. Powell, where the accused "joined the media as party in seeking a writ of mandamus to vindicate his constitutional right to a public trial something which had immediate relevance to the potential findings and sentence of his court-martial."
In the Manning case, "we are not foreclosing the accused from testing the scope of public access, but he has not done so here," the ruling continues.
The two dissenting judges insisted, however, that "the general public has a qualified constitutional right of access to criminal trials," and this includes access to filings.
"Congress did not intend for military judges to operate without review when applying the Rules for Courts-Martial or the Military Rules of Evidence," Chief Judge James Baker wrote, joined by Judge William Cox. "Neither did Congress intend that review to come in the form of collateral appeal to Article III courts in the context of ongoing courts-martial. That would not provide for a uniform application of the law between services and between courts-martial. It would also be unworkable."
Appellate jurisdiction is certainly available to review a military judge's application of Rule for Courts-Martial (R.C.M.) 806, under the Uniform Code of Military Justice (UCMJ), which explains the right to public trial, according to the dissent.
They said the majority opinion will have the unintended consequence of barring "this court from exercising jurisdiction in an appeal arising from an accused's assertion of his R.C.M. 806 right to a public trial."
"The majority's interpretation leaves collateral appeal to Article III courts as the sole mechanism to vindicate the right to a public trial found in R.C.M. 806 beyond the initial good judgment of the military judge," Baker wrote. "This is unworkable and cannot reflect congressional design or presidential intent. Among other things, such a reading would result in the uneven application of the law depending, as it would, on the fortuity of the geographic locale where a court-martial is convened. In the case of overseas courts-martial it is not clear how this would work at all."
Judge Cox wrote a separate dissent, joined by Baker, where he highlighted the "responsibility" of military judges "to insure that a military court-martial is conducted so that the military accused and the public enjoy the same rights to a fair and public hearing."
The military judge's confusion as to what authority she possesses over trial documents is evident from the record. In the same Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session, the military judge approved the publication of defense motions, pursuant to an agreement with the government, on a defense website, yet then stated she does not possess the authority to authorize release of court documents in response to appellants' original request before the court, a request which included documents filed with the court such as defense motions. "
Along with the Center for Constitutional Rights and Assange, the plaintiffs in the case are Salon.com writer Glenn Greenwald, Democracy Now writer Amy Goodman; The Nation writer Jeremy Scahill; Kevin Gosztola of The Dissenter; and attorney Chase Madar.
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