Secrecy & Leaks

The Manning Public Access Litigation Moves to District Court

By Steve Vladeck
Thursday, May 23, 2013, 11:17 AM

Before it gets lost in the coverage of this afternoon's speech by the President, I wanted to flag a very important development in the ongoing saga that is the Bradley Manning court-martial. Folks may recall my post from about a month ago on the sharply divided decision by the Court of Appeals for the Armed Forces (CAAF) in which it held that it lacked jurisdiction to decide whether various rulings to close parts of the Manning trial proceedings by the presiding judge, Colonel Denise Lind, violated the right of public access to criminal proceedings recognized by the Supreme Court in Richmond Newspapers and its progeny. As I noted then, although the Manning proceedings are already quite high-profile, this issue is important for national security law purposes far beyond this case, since the exact same question has been presented with regard to the 9/11 military commission trial.

To make a long story short(er), yesterday, the Center for Constitutional Rights, on behalf of itself and a host of additional interested parties, filed a separate lawsuit in federal district court in Baltimore, seeking mandamus and injunctive relief against Judge Lind to prevent the trial proceedings from going forward without more careful analysis of the First Amendment issues raised by her rulings. [Because of the bizarre limits on the Supreme Court's appellate jurisdiction vis-a-vis CAAF, there was no obvious way to seek appellate, rather than collateral, review.]

The complaint in Center for Constitutional Rights v. Lind is here, although interested readers may wish to consult the page CCR has set up for the case, which also has links to the brief in support of the motion for a preliminary injunction, and other background materials.

Leaving aside the merits of the First Amendment issue (which, given the categorical and unreasoned nature of Judge Lind's rulings, seem rather clear), readers may think it's more than a little strange for CCR and its co-plaintiffs to seek collateral review in the Article III courts of a trial judge's interlocutory decision in a court-martial proceeding. This is a problem of CAAF's own making, however--as Chief Judge Baker pointed out so forcefully in dissenting from CAAF's rejection of its power to fashion such relief on appeal. After describing the myriad (bad) consequences of deferring such a claim into collateral review by an Article III court, Chief Judge Baker closed by noting that:

This array of absurd consequences is most assuredly not what Congress intended when it established a uniform system of military justice. And it is most assuredly not what the President intended when he promulgated R.C.M. 806, pursuant to his [statutory] authority [under the UCMJ].

Chief Judge Baker is right: We should all prefer a world where the military courts clean up their own messes. But when they refuse to do so, not only does such abdication put pressure on the Article III courts to step in to ensure that constitutional rights are vindicated (as in this case), but it also goes a long way, in my view, toward undermining the credibility of--and therefore weakening the case for--an "independent" system of military justice.