The final case in CAAF’s first week of oral arguments this term involves questions of public access to the court-martial of Private First Class Bradley Manning, USA. The case is titled: The Center for Constitutional Rights, Glenn Greenwald, Jeremy Sachill, The Nation, Amy Goodman, Democracy Now!, Chase Madar, Kevin Gosztola, Julian Assange, and Wiki[shhh] v. The United States of America and Chief Judge Colonel Denise Lind, No. 12-8027/AR. The Appellants sought extensive access to the trial proceedings of the court-martial of PFC Manning. That request was denied, and they filed a writ-petition with the Army CCA, challenging that denial. The CCA summarily denied the petition, and the Petitioners/Appellants filed a writ-appeal with CAAF, raising the following issues:

1. Whether the First Amendment right of public access (or other public-access rights) applies and guarantees access to the documents Petitioner-Appellants seek (judicial orders, filings, and transcripts) in a timely fashion, contemporaneous with the proceedings to which they relate.

2. Whether First Amendment principles apply to future document sealings going forward, including (a) the right to public notice of a request for sealing, (b) opportunity for interested parties to be heard, and (c) that the trial court be required to ultimately justify any restrictions on public access with caseby-case specific findings of necessity after consideration of less-restrictive alternatives.

3. Whether past R.C.M. 802 conferences should be reconstituted on the public record.

4. Whether public access to future R.C.M. 802 conferences should be governed by First Amendment principles.

The Appellants seek extensive access to this high-profile court-martial. They also challenge the use of R.C.M. 802 conferences in a manner familiar to those following the military commissions (where civilian defense counsel have repeatedly protested 802 conferences; see, for example, Lawfare’s summary of the “9/11 arraignments“).

The Appellants’ brief makes a three-pronged argument for the relief they seek, which is a combination of writs of mandamus and prohibition to compel public access to a wide range of documents, to limit future restrictions on public access, and to “reconstitute past R.C.M. 802 conferences . . . in open court . . . and to conduct all future conferences in a matter not inconsistent with the First Amendment right of public access.” The Appellants’ brief begins by setting some stakes:

Although the public may attend portions of Pfc. Manning’s court-martial proceedings (notably excluding Rule 802 conferences), public access to documents has been inexplicably denied in what is arguably one of the most controversial, high-profile court-martials since the trial of LT William Calley for the My Lai Massacre in Vietnam, and the most important case involving the alleged disclosure of classified information since the Pentagon Papers.

Appellants’ Br. at 8. It then proceeds in three parts, which are listed below, followed by what I think are the most salient points:

1. The public has a presumptive right to access to documents in criminal proceedings. Appellant’s Br. at 10.

The right of public access exists primarily to ensure that courts have a “measure of accountability” and to promote “confidence in the administration of justice.” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). Access to information is especially important when it concerns matters relating to national defense and foreign relations, where public scrutiny is the only effective restraint on government. See New York Times v. United States, 403 U.S. 713, 728 (1971).

Appellants’ Br. at 13 (parenthetical omitted).

2. Neither the Government nor the [trial] court have identified any compelling interest that would overcome the very strong presumption in favor of public access. Appellant’s Br. at 18.

None of these necessary elements — public notice and opportunity to be heard, consideration of less-drastic alternatives (as part of a narrow-tailoring or common-law inquiry), and specific reasoning supported by factual findings supporting the decision and rejecting less-restrictive alternatives — appear to have been satisfied by the court in Pfc. Manning’s case.

Appellants’ Br. at 23.

The contrast with the degree of public access provided for in the military commissions underway at Guantanamo is striking.

Appellants’ Br. at 26.

3. The trial court’s practice of deciding substantive issues within R.C.M. 802 conferences is inconsistent with the public’s right of access to these proceedings. Appellant’s Br. at 29.

A number of substantive matters, including the very issue of public access to documents, have been argued and decided by the trial court in Rule 802 conferences out of view of the public with no articulated justification for the lack of public access.

Appellants’ Br. at 29.

The Government’s response is simple: “The Government asks this Honorable Court to deny the petition because appellant fails to meet the threshold criteria for extraordinary relief.” Gov’t Br. at 3. Unfortunately, this argument is also familiar, and hasn’t been too well-received around here (see, for example, this post about the Government’s writ-appeal in Lawanson, in which it also argued the threshold issue). Like the Appellants’ brief, the Government makes three points, set forth below in similar fashion:

1. Appellants have adequate means, aside from a writ, to attain the relief they seek.

Utilizing the Supreme Court’s standards for granting extraordinary relief, appellants fail to meet the first criteria because they can obtain their requested relief, public access to court~martial documents, through the FOIA.

Gov’t Br. at 6.

Even assuming that appellants made a proper FOIA request, and that FOIA request was denied by both the initial and appellate denial authorities (AR 25-55, para. 5-3), then appellants still are not entitled to mandamus at this Court because the proper remedy is to challenge the denial in federal district court.

Gov’t Br. at 7.

2. Appellants also failed to show that the First Amendment indisputably requires contemporaneous access to court-martial documents.

Appellants cite to a group of cases suggesting that the First Amendment to the Constitution requires contemporaneous access to judicial documents.  That view, however, is hardly unanimous among the federal circuits. The Sixth Circuit has held, and the Supreme Court has indicated, that the First Amendment right to public access is satisfied by one’s unencumbered presence at the trial. The Constitution only requires “that members of the public and the media have the opportunity to attend criminal trials and to report what they have observed.”

Gov’t Br. at 12.

3. The parties and the military judge have complied with the requirements of R.C.M. 802, and no action by this Court is required.

The thrust of appellants’ argument concerning R.C.M. 802 conferences amounts to a constitutional challenge to 802 conferences as a whole. And this argument is also without merit.

Gov’t Br. at 16.

 The Appellants filed a lengthy reply brief. It emphasizes the Appellants’ view that they (and the public) are entitled to contemporaneous access to the trial and trial documents, for which FOIA is no substitute. The reply brief also takes the Government to task for suggesting that FOIA – followed by a suit in district court – is the appropriate avenue for access, based on the history of Dayton Newspapers, Inc. v. United States Dep’t of the Navy, 109 F. Supp. 2d 768 (S.D. Ohio 1999). In that case, the plaintiffs sought court-martial records including members’ questionnaires. They exhausted their administrative options, and then filed a suit seeking disclosure under FOIA. The district court found that the questionnaires contained private information that was exempt from disclosure under FOIA, and terminated the case. Notably, in doing so the district court emphasized that the plaintiffs had sought disclosure under FOIA, and not under the First Amendment where they may have had a right to obtain some or all of the material at issue. Considering this history, it’s hard to take seriously the Government’s position that FOIA provides adequate access. Emphasizing this point, the reply brief notes that the Army has already denied a number of FOIA requests in this case:

Indeed, prior media FOIA requests for documents in the Manning case – including defense filings relating to speedy trial – were denied by the Army in their entirety on the grounds that they might interfere with law enforcement proceedings and deny the defendant fair trial under Exemption 7(A) and (B) of FOIA. That is a truly astonishing ruling given that many of the documents requested were filed by the defense.

Reply Br. at 15. The reply brief also attacks the Government because “[f]or the first time on appeal, and in a footnote, 22 Gov’t Br. at 14 n.41, the government claims that it ‘does not concede that the history of the public’s access to courts-martial is the same as in Article III courts.’” Reply Br. at 19. The Appellants cite the provision of Article 36 that requires courts-martial to “apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts,” to support their argument that the Article III standard of public access is the applicable standard for a court-martial.

The reply brief concludes with the Appellants’ belief that the reason Colonel Lind “did not find in favor of public access to the documents and proceedings at issue here is that she believed this Court and the A.C.C.A. have not yet held that the First Amendment applies to guarantee public access to anything other than the courtroom itself.” Reply Br. at 26. The brief cites a Military Law Review article authored by then-Lieutenant Colonel Lind in 2000 that called for reforms to allow greater contemporaneous access to courts-martial. Media Rights of Access to Proceedings, Information, and Participants in Military Criminal Cases, 163 Mil. L. Rev. 1, 45-53 (2000).

Public access (and the disinfecting nature of sunlight) are regular topics on CAAFlog. I suspect CAAF’s consideration of this issue is an indication that the court is ready to order expanded public access in courts-martial; to open the windows to let in some sunlight and fresh air. I also suspect that the court will make its sentiment clear during next week’s oral argument, and that the questioning will focus on just how much (more) access the court should find is constitutionally required. Considering the Government’s somewhat meek brief, I anticipate that the court will aggressively question the Government counsel about the true scope of the public’s right to access, and the viability of FOIA in ensuring that right.

Case Links:
• ACCA opinion [summary disposition]
Appellants’ brief (writ-appeal petition)
Appellee’s (government) brief
Appellants’ reply brief
Blog Post: Interesting order from CAAF
Blog Post: Argument preview

11 Responses to “Argument Preview: Center for Constitutional Rights, et al. v. United States and Colonel Lind, No. 12-8027/AR”

  1. Charlie Gittins says:

    Having represented the SGTMAJ of the Army in the ABC, Inc., case and seen the CAAF rule from the bench on the public access issue shortly after oral argument, I foresee the Government getting smacked right in the wheelhouse on this one.  And rightly so.  Zack is exactly right — sunlight disinfects and in some cases (as in the McKinney case, for example), the result of publication of otherwise Government suppressed information by the press once they had been granted access led witnesses with knowledge to come forward and provide relevant, material and exculpatory information that we were later able to use during the court-martial, much to the chagrin of the prosecutors who first learned about the information when we used it in cross-examination of their witneses.     

  2. Phil Cave says:

    Are the appellate briefs in all military appellate courts available on PACER?
    If they apply sunlight, then perhaps it should be applied to themselves as well?
    Are the briefs/filings available on PACER or something similar?

    I recently asked for a copy of the audio of a trial in order to assist my client submit a “brief” for consideration under Article 69(a), UCMJ, by Army TJAG.  I was told that she must submit a FOIA/PA request, because she’d already been given a summarized ROT and that was sufficient for all purposes including submitting a Article 69 request to OJAG.  Why is that?

    Still a lot of overcast in military cases. 

  3. Dew_Process says:

    Phil – is it “overcast” or someone who went to Command & Staff and juxtaposed Clausewitz’s “fog of war” into the “fog of litigation?”

  4. westpointquaker says:

    CAAF has no jurisdiction.  Any remedy, if any, to this non-party to a court-martial needs to be sought in federal court.  Note that Manning is not a party to this claim.

  5. Charlie Gittins says:

    I think ABC, Inc. demonstrates that the Court does have jurisdiction.   

  6. soonergrunt says:

    westpointquaker, 05102012 1021hrs:

    Note that Manning is not a party to this claim.

    So clueless non-lawyer question–is there any upside for the Defense to join such an action or is the Accused better off staying out of this question?

  7. Mike "No Man" Navarre says:

    SG–The right to a public trial is a First and Sixth Amend. right.  The First A. one belongs to the public and press, the Sixth A. one to the accused.  It might be a little odd for an accused to join a petition based on the First A. right, but probably not prohibited.

  8. Soonergrunt says:

    No Man–I understand the constitutional rights (as much as a dumb grunt can, anyway) and I can certainly understand why the Accused would pursue a claim in order to protect his/her rights to a public trial (which hopefully forces to Government to put on an actual case and play by a set of rules that are understood and accepted).  I should have clarified–would this be something Defense Counsel would pursue with other parties as a trial or pre-trial maneuver in a sense of legal tactics?  Would it have the potential to alienate the Military Judge and if so, would it be worth it to do this, or would you sit back, stay out of it, and hope that the other parties prevail?
    And I accept it as a given that a justice system, whether military or civilian, is far more likely to deliver actual justice if the system itself is as transparent as it can be.

  9. westpointquaker says:

    In ABC, at least the Sgt Maj was a party.  Not so here.  In any event, I doubt that CAAF had jurisdiction in that case either.  Just because CAAF likes to hear high profile cases under what it refers to as its “potential jurisdiction” does not create “actual” jurisdiction.  For a writ, there must be an underlying jurisdictional statute.  The All Writs Act unlocks the door to jurisdiction, but without an underlying jurisdictional statute, the door cannot be opened.  CAAF can use Article 62 or Article 67 for jurisdiction.  But here there is no government interlocutory appeal for Article 62 purposes, and there are no findings and sentence for Article 67 purposes.  CAAF can create all the “jurisdiction” it wants to hear high profile cases, but that does not make it legally correct.  See Goldsmith.  Frankly, I don’t see how it has jurisdiction to hear the Hasan beard shaving issue either.         

  10. Lieber says:


    There are matters in this case that the defense is on record stating that they do not want in public.  In other words, Manning is opposed to the CCR (at least in part).

  11. Soonergrunt says: