04/25/2012 11:36 am ET Updated Jun 25, 2012

Secrecy and the Bradley Manning Trial

Court-martial proceedings are moving forward at Fort Meade, Maryland, in the case of Pfc. Bradley Manning, the suspected whistleblower accused of leaking classified government documents to Wikileaks. Although the Manning court-martial ranks among the most important national security prosecutions in recent memory, it is being litigated largely outside the public eye. Motions and documents filed in the case have not been made public. Orders issued by the trial judge also have not been released.

The law is clear: U.S. Supreme Court decisions establishing a First Amendment right of public access to criminal proceedings extend to courts-martials. So does the federal common law right of public access, a critical element of the United States' long tradition of open courts. And, just for good measure, the military's own rules mandate a presumption of open, public trials.

Although the law does not absolutely prohibit closing the courtroom, it demands that the government satisfy the heaviest of burdens to do so. Access may be denied only where the government establishes closure is necessary to further a compelling government interest and is narrowly tailored to serve that interest. Even where the government's interest is at its zenith, it will still be only the rarest of circumstances that warrant closing a courtroom or completely denying the public access to documents. That means that if a court filing contains classified information, the solution is not to keep it from the public but to redact it so that the public can be given access in a timely manner and to the fullest extent possible.

In addition, a judge must make specific findings on the record demonstrating why denying the public access is justified to enable a reviewing court to evaluate her decision.

No such showing has been made in the Manning case. Yet, the trial judge, Col. Denise Lind, continues to deny the public full access to the proceedings, including to filings by the government and rulings issued by the court. No transcripts of proceedings have been made available. Conferences with the prosecution and defense have been conducted off-the-record, even though there is a concern that substantive issues are being discussed there, including a pre-trial publicity order (which no one other than the parties has seen).

Both media and civil liberties groups have protested against the secrecy. The Reporters Committee for the Freedom of the Press has demanded greater openness, as has the Center for Constitutional Rights (CCR). Yesterday, however, Judge Lind summarily denied CCR's motion seeking increased access. (Disclosure: I am serving as a consultant to the CCR on this matter).

While a defendant facing a court-martial also has the right to a public trial, the First Amendment right of access serves a different, but equally important interest. Access not only enhances the accuracy and integrity of the proceedings but it also helps guarantee the informed public debate necessary to a democratic society. "Democracies die behind closed doors," cautioned federal appeals court judge Damon Keith amid the fear that gripped the nation after the 9/11 attacks.

The more important the trial, the more pressing that it be open, and that the public be able to witness proceedings (whether directly or via the press) and view documents so that it can understand the issues.

The secrecy surrounding Manning's trial is particularly troubling considering the heated controversy surrounding Wikileaks' publication of the government documents at issue in the case. Rather than allaying concerns surrounding excessive government secrecy by opening Manning's criminal proceedings for the world to see, the court is exacerbating them by suggesting there is something to hide. Given the importance of Manning's prosecution, it serves no one's interest -- not least the government's -- to shut out the public.