For all the circus-like aspects of the Khalid Sheikh Mohammed arraignment three weeks ago, one thing worked well: despite the fact that the proceedings were held down at Guantanamo, the first transcripts were posted on the Defense Department's military commission website even before the epic thirteen-hour session was over. Some of this speed is surely due to the high-profile nature of the trial, and the Obama administration's desire to show that the process is legitimate. Some of that desire is reflected in the rules for the commissions, which mandate unclassified transcripts and other documents be posted within a day; that even where classified information needs to be redacted out, the government must post public versions of the documents within 15 days.
No such luck in the court-martial proceedings for accused WikiLeaks source Bradley Manning. None of the court's orders have been published. None of the transcripts have been released. And none of the government filings have been posted. Not even with redactions -- nothing.
The courtroom is generally open -- but the 30 or so people in the courtroom are the only ones who get to hear what's happening that day, along with a few media covering the proceedings from a side room. Even the media are comparing notes during the breaks because no public transcript is ever released. One would think that there is 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. But requests for this in several letters (two from us and one from the Reporters' Committee for Freedom of the Press) have been refused.
The difficulty of reporting on the proceedings is multiplied by the fact that the government's briefing on the motions being argued each day in court are also off limits. And the courts own orders are also not 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.
One of those orders had to do with our requests for the documents. I didn't manage to write much of it down, but luckily the judge also published a law review article a few years ago explaining her thinking on public access to documents -- finding that while nearly every federal appellate circuit has found the First Amendment demands the maximum practicable degree of access to documents, the military courts of appeals have not. Yet. We (CCR, Glenn Greenwald, Amy Goodman, Jeremy Scahill, The Nation, Julian Assange, and several other journalists covering the proceedings) filed a lawsuit in the Army Court of Criminal Appeals today seeking to force the court to publish all of the documents that have been withheld.
Manning's trial is perhaps the most important case involving government secrets since the Pentagon Papers, and perhaps the most notable court-martial since Vietnam. Manning is a polarizing figure, accused by the government of the largest breach in history, but others would say he deserves much of the credit for finally bringing the troops home from Iraq and Afghanistan, and for the wave of democratic revolution that has swept through much of the Arab world.
Yet at the hearing I was at, astonishingly, I counted only two members of the national media. It occurred to me then that the surest way for the government to kill off media interest in a case is to choke off the flow of interesting detail about the proceedings. Cutting off access completely tends to pique the media's interest by making it obvious the government is hiding something -- as the government has learned repeatedly at Guantanamo. But the simulacrum of openness occurring in the Manning trial -- nominally open courtroom proceedings that are incomprehensible to the press and public because all the underlying documents are hidden away -- is calculated to drive the press away with boredom.