The NYT article, "In Leak Case, State Secrecy in Plain Sight", is a dismal reminder how the US government gives flight to the most outlandish conspiracy theories. The heavy hand meant to fight terrorism while protecting American interests has overwhelmed common sense; the best government is the one that operates in the sunshine.
March 24, 2013
In Leak Case, State Secrecy in Plain Sight
By DAVID CARR
Reporters covering the government’s prosecution of Pfc. Bradley Manning
In pretrial hearings at Fort Meade, Md., basic information has been withheld, including dockets of court activity, transcripts of the proceedings and orders issued from the bench by the military judge, Col.
Denise Lind. A public trial over state secrets was itself becoming a state secret in plain sight.
Finally, at the end of last month, in response to numerous Freedom of
Information requests from news media organizations, the court agreed to
release 84 of the roughly 400 documents filed in the case, suggesting it was
finally unbuttoning the uniform a bit to make room for some public scrutiny.
Then again, the released documents contained redactions that are mystifying
at best and at times almost comic. One of the redacted details was the name
of the judge, who sat in open court for months.
It fits a pattern of what reporters and lawyers say is reflexive and
sometime capricious withholding of information on the government’s part. In
Private Manning’s case, the issue before the court — whether leaking
classified documents can be cast as aiding the enemy — has profound civic
implications. People can disagree about what should happen to government
employees who do the leaking, but it makes sense that such a fundamental
question be debated with as much sunlight as possible.
That is not what is happening in the court-martial of Private Manning, who
WikiLeaks and has pleaded guilty to 10 counts in military court but still
faces additional charges, including aiding the enemy.
It has made for rugged going for the reporters who serve as the eyes and
ears for the rest of us. They can show up at court, but without timely
documents that are routinely available in most other legal cases, they
cannot really do their jobs.
For instance, Private Manning’s lawyers were in court on Feb. 26 asking for
dismissal of the charges, arguing that after more than 1,000 days in
custody, he had been deprived of his right to a speedy trial. In denying the
request, Colonel Lind issued an order that was more than 20,000 words and
had been prepared before the hearing. But no written copy was issued,
forcing reporters to scribble furiously as she read it for two hours, trying
to keep up.
More than three weeks later, a written copy is still not available. Another
important public document, the order that granted Private Manning a
reduction in sentence because of the conditions in which he was held, has
yet to appear.
This is not an effort to complain about tough working conditions for
reporters. The principle behind an open trial is a contract with the public,
and news outlets act as proxies. And the suggestion that leaking documents
is tantamount to aiding and abetting the enemy would be a very troubling
precedent for news media organizations.
Yet coverage has been limited, partly by the court’s restrictions and partly
because an increasingly stretched news media business often does not have
the time, or the resources, to cover lengthy trials. After all, Private
Manning’s case is still in pretrial phase and the full court-martial will
not begin until June 3
“It’s ironic in a trial that is about the government keeping secrets that
they aren’t providing documents that are not classified and should be
public,” said Michael Ratner, president emeritus of the Center for
Constitutional Rights, which filed suit last year over issues of access. “I
was in the hearing and heard the judge read that order, so it’s a public
Often times, when there are arguments over access, a temporary restraining
order is issued until the matter is settled, but the center argued its case
before the United States Court of Appeals for the Armed Forces in October
and is still awaiting a ruling.
The secrecy, redactions and delays in release of information mean that the
public does not have contemporaneous access to the proceedings, a
fundamental component of a public trial. And given that Private Manning is
confronting a life sentence, news media coverage and the public interest are
one of the core protections provided to him by the First and Sixth
Amendments. In September, more than 30 news media outlets, including The New
York Times, filed an amicus brief with the court protesting the
“This case presents a stark example of the dangerous extent to which
pervasive secrecy in military court proceedings undercuts the appearance of
fairness essential to public confidence,” the filing said.
Private Manning’s statement at his guilty plea, which was prepared in
advance, could have been released the same day, but it was also withheld. An
audio version of the speech was leaked, and Alexa O’Brien, an independent
journalist, rushed a transcript
it took the court a little under two weeks to issue a version. That
transcript redacted, among other things, the names of Mr. Manning’s
boyfriend and aunt, which would hardly seem to be state secrets.
Ed Pilkington, a reporter for The Guardian, has been attending the pretrial
hearings since December 2011. He is fascinated by the stakes of the case but
has found himself scrambling to keep track of it all. The judge is a very
speedy reader; Mr. Pilkington estimated she read the order denying a
dismissal of the case at a rate of 180 words a minute.
“It’s a hugely complicated trial and the testimony is laden with military
titles and acronyms,” he said. “The restrictions that they have imposed on
us make it vastly more difficult to do a good job.”
He and others point out that the military commissions
under pressure, become far more open and accommodating to coverage than the
“I am very sympathetic, as any reasonable person would be, to the fact that
there are issues in a military court that should be kept secret, but that is
not what we are talking about here,” Mr. Pilkington said. “This is
kindergarten stuff, with restrictions on very basic documents like dockets
Eugene R. Fidell, who teaches military justice at Yale Law School and was
the president of the National Institute for Military Justice for two
decades, agreed. “Even people like me who find much to admire in the
military justice system are baffled by what seems to be a lack of adult
supervision in this case,” he said.
“The eyedropper approach of letting out little bits of information often
long after the fact is inimical to the administration of justice. In terms
of openness and access it lands far behind what has happened in the
Guantánamo commissions, which is pretty stark. Either you are going to have
a public trial or you are not. It’s the kind of thing that gives secrecy a