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Center for Constitutional Rights et al. v. United States & Lind, Chief Judge

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Synopsis

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.

Status

CCR filed its petition for extraordinary relief with the Army Court of Criminal Appeals on May 24, 2012. On May 30 a panel of ACCA judges ordered the government to respond in writing by June 8 on the central legal issue in the case: whether First Amendment standards apply to access to documents in the case. CCR filed its reply brief seven days later. The ACCA denied the relief we sought without explanation on June 21, 2012. (The case number is Army Misc. No. 20120514.) CCR filed its writ-appeal petition to the Court of Appeals for the Armed Forces (CAAF) on June 26, 2012. The CAAF ordered the government to file with it any orders from the trial court on the issue of public access by August 10, 2012, and petitioners submitted additional briefing per the order on August 24. On Septempber 6, the Court set an oral argument date for the morning of October 10, 2012 in Washington DC.

After oral argument, the Court issued a supplemental briefing order requesting additional brieifng from the parties on three issues: (1) the C.A.A.F.'s jurisdiction to issue extraordinary relief in light of its 2008 decision in U.S. v. Lopez de Victoria and other caselaw; (2) standing; (3) which officials are authorized to direct public release of the records petitioners have requested.

On April 16, 2013, the Court (in a 3-to-2 decision over two dissents) ruled that it lacked jurisdiction to consider our claims.

Description

CCR v. United States is a petition for extraordinary relief requesting that the Army Court of Criminal Appeals order the Judge in the court martial of alleged Wikileaks leaker PFC Bradley Manning to grant the public and press access to the government’s motion papers, the court’s own orders, and transcripts of proceedings, none of which have been made public to date.  In addition, the petition challenges the fact that substantive legal matters in the court martial – including a pretrial publicity order – have been argued and decided in secret.

The courtroom at Ft. Meade, Maryland where pretrial proceedings in Manning’s case are being held has generally been open to interested members of the public. But the several dozen members of the public and media who can make it to the courtroom in person are the only ones able to hear what is happening on a given day, because no transcripts are ever released. As one of the declarations we filed in this case notes, even the media are forced to resort to comparing notes during the breaks because of the lack of a transcript. Obviously, there can be no possible national-security justification for not publishing a transcript when anyone from the public can walk into the hearing and hear the same proceedings.

The difficulty of reporting on the proceedings is multiplied by the fact that the government's briefs on the motions being argued each day in court are also off limits to the rpess and public. Even the court's own orders have not been released (although several times the judge has read her orders into the record -- sometimes so rapidly that she needed to ask for a glass of water).

CCR has written two letters to the trial court asking for improved public access to the proceedings and specifically seeking release of the transcripts, filings, and court orders. The Reporters' Committee for Freedom of the Press also made the same request on behalf of fortyseven media organizations including CBS, NBC, ABC, the New York Times and the Washington Post. On April 24, 2012, the presiding judge, Col. Denise Lind, rejected our requests. Our petition seeks an extraordinary writ from the Army’s highest appeals court to force Judge Lind to comply with our requests and the First Amendment in releasing these documents to the public.

While every one of the twelve federal appellate circuits to consider the question has found that the First Amendment demands the maximum practicable degree of access to documents, Judge Lind has stated that the military courts of appeals have not done so. As a consequence, the military commissions at Guantanamo (which operate under a newly-written set of rules) provide in many ways a greater degree of public access than the court-marital of Bradley manning does here in the United States. For instance, the first transcripts of Khalid Sheikh Mohammed’s arraignment were posted on the Defense Department's military commission website even before the epic thirteen-hour session was over, and the military commission rules mandate that unclassified transcripts and other documents be posted within a day -- and that even where classified information needs to be redacted out, the government must post public versions of the documents within fifteen days.

The petitioners include CCR itself and a diverse group of media figures: Glenn Greenwald, Amy Goodman of Democracy Now!, The Nation and its national security correspondent Jeremy Scahill, and Wikileaks and its publisher, Julian Assange. Also included are Kevin Gosztola, co-author of Truth and Consequences: The U.S. vs. Bradley Manning and a civil liberties blogger covering the Manning court martial, and Chase Madar, author of The Passion of Bradley Manning and a contributing editor to The American Conservative.

Jonathan Hafetz of Seton Hall Law School is cocounsel with CCR.

 

Timeline

March 12, 2012: Reporters' Committee for Freedom of the Press sends a letter on behalf of 47 news organizations to Jeh Johnson, General Counsel of the Department of Defense, requesting that DoD apply the same rules for media access to party filings and court orders in Bradley Manning's case as apply in the Guantanamo military commissions.

March 21, 2012: CCR sends a letter demanding access to secret conferences (Rule 802 conferences) where issues are argued and decided out of public view, and to the documents in the case.

April 23, 2012: Having heard nothing in response to the first letter, CCR sends a second letter to the trial court via defense counsel David E. Coombs.

April 24, 2012: Judge Lind notes that she has received CCR's letters into the record, and that CCR has sent an attorney to argue on behalf of public access in the case and seeks to intervene to seek such access -- and that that motion to intervene "is denied."

May 24, 2012: CCR files this case in the Army Court of Criminal Appeals.

May 30, 2012: Army Court of Criminal Appeals orders government to respond to our brief by June 8, 2012.

June 21, 2012: the Army Court of Criminal Appeals denied the petition in a one-sentence order, giving no explanation of its reasoning whatsoever.

June 26, 2012: CCR filed an appeal to the Court of Appeals for the Armed Forces. The C.A.A.F. is a civilian court comprised of five judges (one spot is vacant) appointed by the president for 15 year terms. The government has 10 days to respond.

After briefing was completed, the CAAF ordered the government to file with it any orders from the trial court on the issue of public access by August 10, 2012, and will allow petitioners to submit additional briefing after that filing by August 24.

October 10, 2012: oral argument will be held at the C.A.A.F.

March 4, 2013: CCR supplements the record with an additional declaration of Kevin Gosztola, describing continuing problems with access to the proceedings.

April 16, 2013: The CAAF rules, by a 3-to-2 vote, that it (and indeed all the military courts of appeal) lack jurisdiction to hear claims of the press or public seeking access to court-martial proceedings.

Attached Files