Government secrecy has been thrust into the national debate in recent weeks, with leaked revelations detailing how the U.S. national-security apparatus clandestinely hatched and nurtured a massive communications-collecting effort that some say sacrifices the privacy of nearly all Americans who use the internet or telephones. But two weeks before the disclosures began on June 5, and before the world had heard the name of the self-confessed leaker-former National Security Agency contractor Edward Snowden-government secrecy was challenged with a high-profile lawsuit filed in Maryland federal court.
On May 22, the New York-based Center for Constitutional Rights (CCR) filed a suit asking for a court order to end pervasive secrecy surrounding the court-martial proceedings against another leaker, U.S. Army Private Bradley Manning, who in 2010 released a trove of classified material to the anti-secrecy website Wikileaks. The lawsuit, citing the First Amendment, asks for "public access to documents filed or generated in the ongoing court-martial proceedings against" Manning, "but which the court-martial has refused to publish or otherwise release to the press and public." Joining CCR as plaintiffs are a number of journalists and media organizations, including The Nation, Democracy Now, and Wikileaks and its founder, Julian Assange, who have sued the military people in charge of Manning's court-martial, including its judge, Denise Lind.
"It's so ironic," says CCR attorney Shayana Kadidal, in a phone interview. "In a case about leaks"-the Manning court-martial, which started on June 3 and is expected to last three months-"the government engages in the kind of mindless secrecy that encourages people to leak in the first place."
The legal battle is not new. It first started after Lind, in April 2012, decided that the Freedom of Information Act, not the First Amendment, governs public access to Manning's court-martial proceedings, according to Kadidal. CCR then litigated the question for a year in the military courts, until an appellate panel in April decided it didn't have jurisdiction to settle the dispute.
So the plaintiffs took their complaint to federal court, where, on June 17, the two sides made their arguments in open court before U.S. District Judge Ellen Hollander.
As Hollander put it during the hearing, the issue before her was whether or not the plaintiffs would suffer "irreparable harm" without "some direction from this court to Judge Lind that she doesn't need the Army's permission" to publicly release court documents in Manning's criminal proceeding.
Hollander emphasized to Kadidal that, to some extent, the problem CCR complained of had already been addressed. As defense attorney John Tyler wrote in a June 6 brief, the government "publicly released 84 of the approximately 564 pre-trial documents" in the Manning case in February, and "an additional 431 pre-trial documents were then made publicly accessible" on June 5. "You've managed to succeed in the sense" that the government largely "gave you what you asked for," Hollander said, so "the irreparable harm is, you don't get 100 percent?"
Kadidal, in response, invoked U.S. Supreme Court cases that credit open access to criminal-court proceedings with ensuring public confidence in the justice system by having it operate for all to see, which also helps aid the accuracy of the proceedings and the trustworthiness of their outcomes. "The press and the public serve as a fact-check," Kadidal said, and "openness is the prescribed cure" for prosecutorial or judicial abuse. He also said other materials from the Manning case, including 160 hours of audio that the government hasn't "made any promises to release," remain secret.
Tyler, meanwhile, called the case "very unusual" and cautioned Hollander against claiming jurisdiction over the court-martial proceedings, despite the appellate ruling that the military courts had no say over the public-access question. "Even if this court is to find" that it has jurisdiction over the Manning court, "there is no need to intervene" because the Army has released the information that CCR complained had been previously kept secret. Going forward, Tyler said, the public can "get immediate relief by contacting the Army" about lack of access to the proceedings.
At press time, Hollander had not yet made a ruling in the case.