We’re still waiting for CAAF to act in 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. That’s the case seeking extensive public access to the PFC Manning court-martial. CAAF heard oral argument back on October 10, 2012, and then ordered submission of additional briefs to address questions of jurisdiction to decide the case. Those briefs were due before the end of October.

One of the major positions taken in that case was the Government’s argument that the petitioners should use the FOIA process, with the petitioners replying that the FOIA process was inadequate. We considered that question (in the context of this blog) here and (in the context of the Salyer case) here and here.

I won’t predict that CAAF’s long deliberation means a major opinion (though I hope it does). But while we’re waiting for the court, we have the unique opportunity to see what happens when a military justice system provides the kind of transparency at issue. And it’s happening in what might seem like the unlikeliest of places: the military commissions.

Lawfare is closely following the developments since the D.C. Circuit found that a charge of material support for terrorism for pre-2006 conduct cannot be brought before a military commission, because material support is not a traditional war crime under the international laws of war. There’s lots of analysis, particularly a post today that dissects some recent filings in the case against the five 9/11 conspirators:

The Guantánamo military commissions yesterday released a pair of important filings by the Office of the Chief Prosecutor (OCP), regarding the ongoing controversy over the conspiracy charges against the five 9/11 defendants.

The reason for and reasonableness of such transparency – as opposed to the practical equivalent of yelling “FOIA” with your fingers in your ears – is pretty clear. In the words of the Government’s Chief Prosecutor, Brigadier General Mark Martins:

Example of Guiding Principles: Transparency

Prosecutorial discretion is also guided in matters of transparency, such as decisions regarding public access to trials.  Military commissions prosecutors will continue, as we did last month, to submit formal motions urging judges to permit closed circuit video transmission of live proceedings to locations in the continental United States for viewing by victim family members, by the media, and by the public.

The Supreme Court has said that “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”  The best traditions of public prosecution and wartime accountability call for us to allow the American people and world to witness these criminal trials.  I want to take this opportunity, by the way, to recognize the leadership and hard work of Doug Wilson, Jeh Johnson, Bruce Macdonald, Mike Chapman, and Wendy Kelly in making possible the stateside closed circuit viewing of military commissions.  I also recognize convening authority Bruce Macdonald for his vision in designing and fielding the new military commissions website, where the morning after a proceeding is now posted an unofficial and unauthenticated transcript specifically to increase transparency.

2 Responses to “What Transparency Looks Like”

  1. H Lime says:

    Actually, Zach, the Commissions are the likeliest place for this to happen.  The UCMJ has existed for sixty plus years and has comfortably survived every attempt, internal and external, to bring it alongside the Federal civilian justice system in terms immediate and broad opennes, eg, PACER.  
    The various iterations of the Commissions were created in response to tremendous and sometimes daily public and legal scrutiny, and often unfair maligning in op-ed pieces.  The scrutiny continues.  So it makes sense to be open when it comes to the Commissions–win the public and you have a better chance of winning the op-ed war.
    Back to the Code–is the current scrutiny–which has dropped off the cliff after a short burst from McClatchy, and is confined to the Defense-orientated commentary that is CAAFlog–able to tip the balance so that the “regular” Code finds itself in the precarious position of the Commission-side of the Code?
    Don’t know, but history would suggest not.

  2. H Lime says:

    I hate auto-correct, re at minimum my putative use of “orientated.”