CHRGJ Scholar Carey Shenkman’s Op-ed in TruthOut: “National Security Journalism on Trial” (June 25)
June 25, 2013

TruthOut, June 25, 2013
“National Security Journalism on Trial”
by Carey Shenkman
Freedom of the press in the United States is on trial behind a curtain. In the court martial of WikiLeaks whistleblower Private First Class Bradley Manning, government prosecutors are making an unprecedented argument that, if accepted, could eviscerate the freedom of the press to report on issues of national security. To make matters worse, public and media access to the court martial in remote Fort Meade, Maryland, has been unduly restrictive. Journalists have been denied sufficient access and the public cannot see basic trial documents. Indeed, in many ways the military commissions at Guantánamo feature greater access than the Manning trial. Such limitations undermine our democracy. This trial affects our rights without allowing us a proper opportunity to observe, understand, or accurately report on it.
Manning is charged with “aiding the enemy” by leaking documents that were posted online and eventually found in the possession of Al Qaeda. These documents provided the public a previously unseen look at the wars in Iraq and Afghanistan, including evidence of killings of civilians and journalists by the U.S. military. The prosecution’s theory ignores whether Manning intended to aid Al Qaeda or actually did. Chillingly, as Harvard Law Professor Yochai Benkler writes in The New Republic, the charge of “aiding the enemy” could very well be used against civilians.
He observes, considering the text of the charges, current commentary, and Supreme Court precedent, that “any competent lawyer today would have to tell a prospective civilian whistleblower that she may well be prosecuted for the capital offense of aiding the enemy just for leaking to the press.” Although Manning is charged in a military court as a member of the U.S. armed forces, there is no limiting language in the “aiding the enemy” statute that prevents the application against you, or me, or any civilian who leaks or evenrepublishes information the government does not want us to know.
Should this interpretation of the “aiding the enemy” charge and its application to civilians prevail, there is no way to frame the government’s theory in Bradley Manning’s case in a way that does not also apply to the New York Times, FOX News, or civilian whistleblowers like Edward Snowden, who leaked evidence of mass domestic surveillance to TheGuardian. If Manning’s leaks are aiding the enemy simply because they found their way to Osama Bin Laden’s compound, then a copy of any publication accessible to any terrorist also ‘aids the enemy.’
To be sure, should the court accept the government’s theory, there is the option of trusting the Obama administration and its prosecutors to avoid harassing the press. But the protection of our rights cannot be predicated on trust of power. Such trust would also put a head in the sand to recent stories like James Rosen of FOX News and the AP records seizures. Criminalization of press activity is steps away.
This is all happening behind essentially closed doors. Manning’s hearings so far have infringed on a fundamental civil liberty—the right of the people to meaningfully access our courts. Public access to courts is vital to a well-functioning democracy. It is an important check on the fairness and accuracy of our judicial system. The Manning court martial is deeply relevant to the public and may set the precedent for the rights of civilian journalists.
On the first day of the court martial, only 70 of 350 journalists who applied for press credentials were provided them. One journalist, Narayan Lakshman, wrote for The Hindu that, “It was as if the gods themselves had conspired with other forces to restrict media access.” A coalition of news organizations, including FOX News, Bloomberg, The Guardian, and NPR had to pressure the court to provide permanent access for stenographers (which, after over a week of pressure, was finally guaranteed).
The overflow room for the public featured a video feed that cut out about every five minutes for up to two minutes. An impassioned opening statement from the defense counsel vanished, and came back into view as he sat down. I find it curious that the strongest military in the world cannot get a video stream to properly function over 100 feet on an army base.
Access means being able to know what’s going on—which in court includes a way to see the basic documents like indictments, filings of the parties, court orders, or transcripts. Court can be fast-paced, particularly for non-lawyers, and these documents allow the public to review arguments and the case in advance or after hearings.
But these documents have largely been unavailable to the public in Manning’s trial. Defense attorney David Coombs is occasionally allowed to post some defense documents on his blog. They are usually incomplete or heavily redacted. ‘Redacted’ here means whole arguments (sometimes pages) are blacked-out. Transcripts are made for court use only. The public does not see them. The closest alternatives are transcriptions of hand-written notes patiently scribbled by activists. Members of the press regularly compare notes to verify their facts. Now, only after mainstream media attention toward the trial has ebbed down, stenographers were granted permanent access to the court martial. Finally, the orders of Judge Col. Denise Lind are unavailable. She reads all orders aloud—once—at speeds in excess of 150 words per minute with long, numerical legal citations.
Last summer I worked for the Center for Constitutional Rights (CCR), a nonprofit legal advocacy organization promoting U.S. government accountability. I was involved in filing a petition before the Army Court of Criminal Appeals demanding meaningful public access to documents and records in the Manning case. The lawsuit was joined by multiple journalists including Glenn Greenwald, Amy Goodman, and Jeremy Scahill.
The battle through the appellate military court system was uphill and muddy. It ultimately lost in a narrow vote (3-2) in the Court of Appeals for the Armed Forces in Washington, D.C. The court did not reject the claims, but instead said it did not have authority to decide the issue of access to a military court. CCR has now filed a suit in federal court, outside the military system, to fight for access that should be a given.
All this pressure has perhaps led Manning’s trial court to budge. Judge Lind released some documents per a request under the Freedom of Information Act (FOIA), and the Department of Defense followed suit with nearly all documents in early June. The first release was incomplete and unnecessarily delayed. The second, providing documents after-the-fact, does nothing to provide access to a trial as it unfolds. Judge Lind also addressed issues of press access at the beginning of trial, probably in response to the CCR suit. Prosecutor Major Ashden Fein told her, inaccurately, that only five (not 280) journalists were denied access. Defense counsel Coombs, inside the courtroom with no knowledge of the press waiting outside, had no grounds to object.
Judge Lind’s discussion of access also preceded the faulty video feed. Beyond the grant of stenographer access which provides unofficial transcripts, few trial documents have been released to the public. CCR Senior Managing Attorney Shayana Kadidal calls the court one of “mock openness.” Indeed, despite my legal training, I am often lost when I observe hearings.
Bradley Manning has already pled guilty to charges that carry a maximum sentence of twenty years. The government caught him and has a guaranteed punishment. The prosecution’s relentlessness in continuing the trial only signals one thing—that the Obama administration is trying to send a message. You, too, can send a message that Manning is not alone.
It is easy for you to keep an eye on this issue. I suggest at the very least to set up a weekly news alert for “Bradley Manning.” If you live near Maryland or Washington, D.C., consider a trip to a hearing at Fort Meade (the area itself is beautiful). Lastly, follow the Bradley Manning Support Network— Their reporting is dedicated and comprehensive, and they also engage in amazing advocacy and support events nationwide.
Do not let this court martial happen behind closed doors, unless, in the words of Edward Snowden, “living unfreely but comfortably is something you’re willing to accept.” More is at stake in this court martial than the fate of one person or matters exclusive to the military. Manning’s trial foreshadows a grim future for both judicial access and government accountability journalism in America.

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