CAAF decided 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, 72 M.J. 126 (CAAFlog case page) (link to slip op.), on April 16, 2013, finding that the Appellants failed to establish that CAAF or the CCA has jurisdiction to grant the relief requested.
Judge Stucky writes for the majority, with Chief Judge Baker and Senior Judge Cox both dissenting, both writing separate dissenting opinions, and both joining the other dissent.
The case began when 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:
I. 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.
II. 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.
III. Whether past R.C.M. 802 conferences should be reconstituted on the public record.
IV. Whether public access to future R.C.M. 802 conferences should be governed by First Amendment principles.
CAAF heard oral argument in October. During the argument, the court expressed skepticism about its jurisdiction to decide this case. The court then issued an order calling for supplemental briefs on the following issues (this was discussed during the oral argument):
I. Whether, in light of Denedo v. United States, 556 U.S. 904 (2009), Clinton v. Goldsmith, 526 U.S. 529 (1999), United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), ABC Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997), United States v. Hershey, 20 M.J. 433 (C.M.A. 1985), Articles 36, 66, and 67, UCMJ, and Rule for Courts-Martial 806, this court and the United States Army Court of Criminal Appeals have subject-matter jurisdiction over Appellants’ request for extraordinary relief.
II. Whether Appellants, non-parties to the court-martial, have standing in this court or the United States Army Court of Criminal Appeals to file a request for extraordinary relief in this matter.
III. Assuming jurisdiction, (1) in the context of the records now at issue, which officials are lawfully authorized to direct public release of such records, and (2) to what extent must Appellants first demonstrate that they have made their initial request to an appropriate records custodian and had such request denied.
Judge Stucky begins his majority opinion with a discussion of jurisdiction in federal courts in general, and the specifically-limited jurisdiction of CAAF, the CCAs, and courts-martial. He also notes the while CAAF has the authority to issue writs under the All Writs Act, the Supreme Court has found that CAAF “is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice.” Clinton v. Goldsmith, 526 U.S. at 529, 536 (1999). Then he gets to the heart of the matter:
Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2006), our jurisdictional statute, states:
In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.
It is vital to note what we are faced with here. This is not a case like United States v. Lopez de Victoria, where the question was the interpretation of our Article 67 jurisdiction within an existing (Article 62) statutory framework. 66 M.J. 67 (C.A.A.F. 2008). This case is not like Denedo v. United States, where the question was the availability of the writ of error coram nobis in cases other than those in which fundamental jurisdictional objections were asserted. 66 M.J. 114 (C.A.A.F. 2008), aff’d., 556 U.S. 904 (2009). Nor is it like Hasan v. Gross, where the harm alleged by the appellant — that the military judge was biased — had the potential to directly affect the findings and sentence. 71 M.J. 416 (C.A.A.F. 2012).
Finally, this case differs in a very important respect from Powell, 47 M.J. 363. In that case, which dealt with the closure of an Article 32 investigation to the press and the public, the accused joined in the proceedings in order to vindicate his right to a public trial. Id. 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. 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.
Slip op. at 7-8 (emphasis added). He concludes his short opinion soon after this passage, with a final reminder that the accused has not joined the petitioners: “We are not foreclosing the accused from testing the scope of public access, but he has not done so here.” Slip op. at 10. However, “[o]n these facts, we hold that Appellants failed to meet their burden of establishing that this Court or the CCA has jurisdiction to grant Appellants the relief they seek.” Id.
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