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Center for Constitutional Rights et al. v. Chief Judge Lind

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Synopsis

Center for Constitutional Rights et al. v. Chief Judge Lind is a lawsuit filed in federal district court in Baltimore, Maryland seeking access to documents and closed sessions in the court-martial proceedings for Private First Class Bradley Manning. This case follows the dismissal of a previous suit before the Court of Appeals for the Armed Forces.

Status

CCR originally sought relief from the military courts of appeal, but after a year of litigating the issue the military courts decided they lacked the power to grant relief to members of the media seeking access to court-martial proceedings, leaving resort to the federal district courts as the only available option. Plaintiffs filed their complaint and a motion for preliminary injunction on May 22, 2013, and requested expedited argument on the motion.

The case has been assigned to Judge Ellen Lipton Hollander. Judge Hollander has conferred with the parties and set a schedule as follows: the government's response brief in opposition to the preliminary injunction motion is due June 6th, CCR's reply brief is due June 10, and oral argument will be held on the motion at 10am on Monday, June 17. On June 19, 2013, Judge Hollander denied CCR's motion for preliminary injunctive relief, stating that "the fact that the government released a huge number of documents after suit was filed, and has committed to the release of documents from the court-martial going forward, and on an expedited basis, seriously diminishes the likelihood of irreparable harm."

Description

CCR v. Chief Judge Lind is a lawsuit seeking a preliminary injunction under the First Amendment ordering the military 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 lawsuit 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 press 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 forty seven 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 complaint and preliminary injunction motion seek an order from the federal district court forcing Judge Lind to apply First Amendment standards to the documents, which should result in the release of most of this material 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.
 
The same group brought suit in May 2012 in the military courts of appeals seeking the same relief. However, after a year of litigation, the highest court in the military system, the Court of Appeals for the Armed Forces, ruled 3-to-2 that it lacked the power to hear claims by media petitioners seeking access to courts-martial. Under that ruling a military judge could close the courtroom itself and the press and public would have no recourse to the military courts. Because Congress has narrowly limited appeals from the military courts to the Supreme Court, that ruling cannot be challenged directly in the Supreme Court. A detailed description of that case can be found here.
 
Jonathan Hafetz of Seton Hall Law School is co-counsel with CCR, along with Bill Murphy and John J. Connolly of Zuckerman Spaeder LLP’s Baltimore office.

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 petition for extraordinary relief in the Army Court of Criminal Appeals. Case is litigated for the next 11 months in the military courts of appeals.
 
October 10, 2012: Case is argued at the Court of Appeals for the Armed Forces, the highest court in the military appellate system.
 
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. Because the supreme court lacks jurisdiction over cases where the CAAF denies relief, petitioners have no option to appeal directly to the Supreme Court.
 
May 22, 2013: CCR files this lawsuit in the federal district court in Baltimore.
 
May 24, 2013: Judge Hollander sets a schedule forbriefing and argument: June 6 for the government brief; June 10 for CCR's reply, June 17 for argument.
 
June 19, 2013: Two days after oral argument, Judge Hollander issues opinion denying preliminary injunctive relief.