The Washington Post reports in this AP story that the petitioners who sought access to the PFC Manning court-martial, and whose petition was rejected by the ACCA and CAAF on jurisdictional grounds, have refiled in U.S. District Court in Baltimore.

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, (opinion) (CAAFlog case page) on April 16, 2013, finding that the Appellants failed to establish that CAAF or the CCA has jurisdiction to grant the relief requested.

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, (opinion) (CAAFlog case page) 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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Here’s a link to Professor Steve Vladeck’s post on Lawfare criticizing CAAF’s opinion in CCR v. United States.

Available here.  Judge Stucky wrote for the majority, holding that CAAF doesn’t have jurisdiction to grant CCR’s writ appeal seeking access to documents and the creation of R.C.M. 802 conference synopses in the Manning trial.  Chief Judge Baker and Senior Judge Cox each dissented and each joined one anothers’ dissents.

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.

I’ve been working through some of the oral argument audio from this term that I didn’t get to listen to over the past few weeks, and I came to an interesting exchange between Judge Ryan and the Government’s counsel in Center for Constitutional Rights, et al. v. United States and Colonel Lind, No. 12-8027/AR. One of the issues in that case is contemporaneous access to the briefs and pleadings, with the Government insisting that the petitioners utilize the FOIA process. Judge Ryan noted that CAAF provides access to the briefs in cases it grants, even though there is no requirement that it do so. She characterized this as a common-sense solution to something that might not be a full-fledged Constitutional problem. She also repeatedly asked the Government’s counsel why similar common-sense measures couldn’t be employed at the trial level, without requiring the full FOIA process.

The exchange made me realize that by making the briefs of the parties available on its website, CAAF enables a significant amount of analysis and commentary that otherwise wouldn’t be possible. (Or should it be “analysis” and commentary?). If this blog required waiting for a FOIA response, or working from documents obtained from unofficial sources, we would have much less content.

A reader send us this order 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. The court ordered the parties to file supplemental briefs on the following issues:

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.

The court also invited counsel for PFC Manning to submit a brief.

Audio of the oral argument of Center for Constitutional Rights, et al. v. United States and Colonel Lind, No. 12-8027/AR, on Wednesday, October 10, 2012, is posted on the court’s website at this link.

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
• Oral argument audio

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:

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The Center for Constitutional Rights offers this synopsis of its case Center for Constitutional Rights v. Lind, No. 12-8027/AR, which is currently pending before CAAF:

CCR v. United States is a petition for extraordinary relief filed with the Army Court of Criminal Appeals, and a subsequent writ-appeal filed with the Court of Appeals for the Armed Forces, seeking access to documents in the court-martial proceeding for Private First Class Bradley Manning.

. . . .

[The writ appeal asks CAAF to] grant the public and press access to the government’s motion papers, the court’s own orders, and transcripts of proceedings [in the PFC Manning case], none of which have been made public to date.  In addition, the [writ appeal] challenges the fact that substantive legal matters in the court martial – including a pretrial publicity order – have been argued and decided in secret.

The writ appeal is available here and the Government’s response is available here.

Yesterday, CAAF issued an interesting order in the case.  CAAF ordered the Government to file with CAAF no later than 10 August “the ruling and analysis of the military judge,” either in the form of an appellate exhibit or Article 39(a) session transcript, regarding CCR’s request for “the docket sheet, all motions and responses thereto, all rulings and orders, and verbatim transcripts or other recordings of all conferences and hearings before the court-martial” in the Manning case.  CAAF also ordered the Government to provide it with the motion that was filed seeking those materials and any response to that motion.  CAAF allowed the Government to choose to file responsive documents under seal accompanied by an explanation of “why they should be filed with this Court under seal.” PFC Manning’s counsel are authorized to file a response to the Government’s submission no later than 24 August.