Judge Rules Further Court Intervention Not Necessary Where Government Voluntarily Acquiesced to Journalists’ Demands

By the Center for Constitutional Rights. June 20, 2013. 

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CCR lawyer Shane Kadidal. Photo credit: The Ithacan (click for source)

June 20, 2013, Baltimore – Last night, a federal district court denied a request for emergency relief in a lawsuit by the Center for Constitutional Rights after the U.S. government voluntarily agreed to provide ongoing access to documents in the court martial of Pfc. Bradley Manning. The suit, bought on behalf of a group of journalists, asked the court for a preliminary injunction under the First Amendment ordering the military judge in the court-martial of Bradley Manning to grant the press and public ongoing access to documents in the proceedings as done in ordinary criminal trials. In addition, the suit challenged the fact that substantive legal matters in the court martial have been decided in secret.

The Judge in the case, Ellen Lipton Hollander, ruled that a First Amendment decision was unnecessary since the government voluntarily acquiesced to the journalists’ demands and stated that the remaining issues in dispute were not significant enough to justify her intervention on an expedited, emergency basis. Her decision came only after the military uploaded to the Internet several thousand pages of case documents on the day before it had to file its opposition brief in this case, vowed under oath to continue doing so throughout Manning’s court-martial, and permitted privately-funded stenographers to produce daily transcripts of the trial.

“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 to plaintiffs,” wrote Judge Hollander in her decision. 

Media coverage of the Manning trial remains burdened by the lack of access to court documents and transcripts that attended the last year and a half of proceedings. The hundreds of documents dumped on the Internet the day before the government had to respond to the lawsuit were posted three days into the trial, when journalists were preoccupied with covering events in court. Moreover, daily transcripts are now being funded by Internet activists rather than provided by the government.

“The last fourteen months of stonewalling have done incalculable damage to the reputation of the military justice system. Three military courts chose to ignore or avoid our claims over the course of a year before the government suddenly conceded most of what we asked for after we filed in federal court,” said CCR Senior Managing Attorney Shayana Kadidal, who argued the motion on Monday in federal court. “It should not take a federal lawsuit to force the Pentagon to allow journalists to have access to unclassified documents in the most important whistleblower trial since the Pentagon papers. We are confident of two things: first, that the restrictions on media access imposed thus far have rendered Manning’s trial fundamentally unfair, and second, that if Manning is convicted and appeals, there will be no way for the government to avoid having a day of reckoning in the military courts on the full scope of media access to courts-martial.” 

Attorneys are considering all options for further relief. 

Plaintiffs in the case, in addition to the Center for Constitutional Rights, are journalists Glenn Greenwald of The Guardian, 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, a civil liberties blogger covering the Manning court martial, and author Chase Madar.

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. 

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.