Military appeals court rejects bid for access to Manning documents, setting uncertain precedent for journalists

A military appeals court denied a group of journalists’ attempt to access court filings and decisions in the court-martial of Army Pfc. Bradley Manning.

In a 3-2 split, the U.S. Court of Appeals for the Armed Forces decided Wednesday it did not have jurisdiction to address the journalists’ arguments, dealing a major setback to the public’s ability to secure its rights of access to military court proceedings.

The court held that it could only consider matters relating to the “findings and sentence” of a particular court-martial, and that a third party to the case has a weaker constitutional claim for making the proceedings public.

“This Court, and courts-martial in general, being creatures of Congress created under the Article I power to regulate the armed forces, must exercise their jurisdiction in strict compliance with authorizing statutes,” the majority opinion, written by Judge Scott Stucky, said.

The governing statute says the court “may act only with respect to the findings and sentence as approved by the convening authority.” The majority interpreted this narrowly, holding that public access rights are outside that definition.

Stucky was joined by Judges Charles Erdmann and Margaret Ryan.

Manning himself did not argue for public access, and the majority said he “steadfastly refused” to “vindicate his constitutional right to a public trial.” The majority said this made the case different from a previous one, ABC v. Powell, in which the media was granted access, because there the accused joined media parties in arguing for access.

Although acknowledging that other statutes allow the court to review issues “in aid of” that jurisdiction, the majority said such a power does not allow them to “enlarge” their jurisdiction.

“Today’s decision flies in the face of decades of First Amendment rulings in the federal courts that hold that openness affects outcome – that the accuracy of court proceedings depends on their being open,” said Center for Constitutional Rights Senior Attorney Shayana Kadidal, who argued the case for the group of journalists.

“Bradley Manning's trial will now take place under conditions where journalists and the public will be unable as a practical matter to follow what is going on in the courtroom,” he said. “That ensures that any verdict will be fundamentally unfair, and will generate needless appeals afterwards if he is convicted.”

Chief Judge James Baker and Senior Judge Walter Cox wrote separate dissents.

Both dissenters said the court’s lack of jurisdiction would force litigants into civilian courts, also known as Article III courts, in order to litigate public access and other issues not explicitly related to the “findings and sentence” of a particular court martial.

“The majority’s interpretation leaves collateral appeal to Article III courts as the sole mechanism to vindicate the right to a public trial . . . beyond the initial good judgment of a military judge,” Baker wrote. “This is unworkable and cannot reflect congressional design or presidential intent.”

Baker said relying on civilian courts would lead to inconsistency, as the geographical location of a court martial would determine which civilian court would hear the access issue. For an overseas court-martial, Baker said, it is unclear how a civilian court would weigh in at all.

Cox’s dissent said that military courts are better equipped to handle appeals of access issues than civilian courts. “A military judge must have broad latitude to decide on how she should deal with requests for information such as we have before us.”

Deciding access issues would “aid the military judge in the performance of her duties,” Cox wrote. “Certainly we are in a better position to do that than is a federal district judge to solve the issues presented.”

“This array of absurd consequences is most assuredly not what Congress intended when it established a uniform system of military justice,” Baker wrote.

Kadidal warned of similar consequences. “The majority's decision ensures that no appellate military court will be able to review a decision of a trial judge denying public access to proceedings until after the proceedings are over,” he said.

“As a result, a military trial judge could exclude the public from being present in the courtroom – in violation of existing military law – and there would be no place for members of the public to appeal that decision within the military court system.”

The dissenters also said that the majority’s rule makes no distinction over whether the accused sought public access. If the court’s jurisdiction is limited to “findings and sentence,” then the identity of the person seeking public access does not matter.

The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief, joined by 31 news media organizations, in support of the journalists seeking access.