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Judge rejects journalists’ demand for more openness in Manning trial
As City Paper reported this week, the case in which the New York-based Center for Constitutional Rights (CCR), joined by media organizations, including Wikileaks, The Nation, and Democracy Now!, asked for a court order to end pervasive secrecy surrounding the court-martial proceedings against U.S. Army Private Bradley Manning, landed in Maryland federal court on Monday.
Late yesterday, U.S. District Judge Ellen Hollander ruled that the group’s claims of unconstitutional secrecy do not merit her intervening in the trial of Manning (who in 2010 released a trove of classified material to the anti-secrecy website Wikileaks) with an order governing public disclosure of court documents.
“In light of the actions taken by defendants after this case was filed—to release documents, to commit to expedited release of documents going forward, and to permit unofficial transcription of proceedings by privately retained stenographers—I do not see a substantial likelihood of irreparable harm in the absence of a preliminary injunction,” Hollander wrote in a 42-page opinion, docketed two days after the June 17 oral arguments in the lawsuit.
“I am mindful of the keen public interest in the court-martial, the right of public access to such proceedings, as well as the extraordinary nature of the relief plaintiffs seek,” Hollander continued. But the plaintiffs – New York-based Center for Constitutional Rights (CCR), along with several journalists and media organizations, including Wikileaks, The Nation, and Democracy Now! – “ask this Court to intervene collaterally in an ongoing court-martial and issue dictates to the military judge conducting the proceedings, in regard to the management of public disclosures. In light of the measures that defendants have taken to provide the press and the public with access to the ongoing court-martial proceedings, such preliminary, equitable relief is not warranted here.”
The defendants – military leaders in charge of the proceedings against Manning – had cautioned Hollander against intervening in the Manning court martial, questioning whether a U.S. District Court judge had jurisdiction over a military tribunal. Hollander disagreed with that notion.
While the federal court “is obliged to tread gingerly” when reviewing a military tribunal’s rulings, Hollander wrote, “it cannot ignore its responsibilities to uphold federal rights,” which in this case involve “fundamental constitutional values of openness of court proceedings.” She added that “such access is vital in our democracy, and helps to inspire public confidence in the integrity of such proceedings,” but in rejecting the plaintiff’s case, decided that sufficient public access to the Manning court martial is currently in place, even if it may not have been when the lawsuit was filed on May 22.
via UPDATE: Judge rejects journalists’ demand for more openness in Manning trial | Citypaper Blogs.
Press Lose Bid to Shine a Light on Manning Trial
WASHINGTON (CN) – Journalists fighting the secrecy cloud over the trial of WikiLeaks source Bradley Manning found no relief from the military’s highest court.
The Center for Constitutional Rights along with several journalists, including WikiLeaks founder Julian Assange, asked the court to ensure members of the press and public have access to court documents and transcripts in Manning’s case.
With Manning facing a possible life sentence for the charges against him, about a third of the upcoming trial is expected to be held behind closed doors. The trail is set to begin on June 3, 2013.
Manning, a 25-year-old private first class, admitted in late February to having sent the secret-busting website the largest intelligence trove in U.S. history.
The leaked filed included hundreds of thousands of incident reports from the Iraq and Afghanistan wars, Guantanamo detainee profiles, and, most famously, footage of a Baghdad airstrike.
Last year, Col. Denise Lind, the military judge presiding over Manning’s trial, declined to grant media outlets open access to government records and judicial opinions in the case. The case went to the Court of Appeals for the Armed Forces after the U.S. Army Court of Criminal Appeals affirmed Lind’s decision in June.
At a hearing to have the military appeals court widen public access to these proceedings, the five-judge panel questioned whether they had jurisdiction to grant such relief.
Though the judges seemed to see the merit in ordering transparent proceedings, they killed the appeal, 3-2, Wednesday on jurisdictional grounds.
“Here, the accused has steadfastly refused to join in the litigation, or, despite the Court’s invitation, to file a brief on the questions presented,” Judge Scott Stucky wrote for the majority. “We thus are asked to adjudicate what amounts to a civil action, maintained by persons who are strangers to the court-martial, asking for relief expedited access to certain documents that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial.”
The majority distinguished Manning’s court-martial from that of the 1997 case ABC Inc. v. Powell, where the accused “joined the media as party in seeking a writ of mandamus to vindicate his constitutional right to a public trial something which had immediate relevance to the potential findings and sentence of his court-martial.”
In the Manning case, “we are not foreclosing the accused from testing the scope of public access, but he has not done so here,” the ruling continues.
The two dissenting judges insisted, however, that “the general public has a qualified constitutional right of access to criminal trials,” and this includes access to filings.
“Congress did not intend for military judges to operate without review when applying the Rules for Courts-Martial or the Military Rules of Evidence,” Chief Judge James Baker wrote, joined by Judge William Cox. “Neither did Congress intend that review to come in the form of collateral appeal to Article III courts in the context of ongoing courts-martial. That would not provide for a uniform application of the law between services and between courts-martial. It would also be unworkable.”
Appellate jurisdiction is certainly available to review a military judge’s application of Rule for Courts-Martial (R.C.M.) 806, under the Uniform Code of Military Justice (UCMJ), which explains the right to public trial, according to the dissent.
They said the majority opinion will have the unintended consequence of barring “this court from exercising jurisdiction in an appeal arising from an accused’s assertion of his R.C.M. 806 right to a public trial.”
“The majority’s interpretation leaves collateral appeal to Article III courts as the sole mechanism to vindicate the right to a public trial found in R.C.M. 806 beyond the initial good judgment of the military judge,” Baker wrote. “This is unworkable and cannot reflect congressional design or presidential intent. Among other things, such a reading would result in the uneven application of the law depending, as it would, on the fortuity of the geographic locale where a court-martial is convened. In the case of overseas courts-martial it is not clear how this would work at all.”
Judge Cox wrote a separate dissent, joined by Baker, where he highlighted the “responsibility” of military judges “to insure that a military court-martial is conducted so that the military accused and the public enjoy the same rights to a fair and public hearing.”
The military judge’s confusion as to what authority she possesses over trial documents is evident from the record. In the same Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session, the military judge approved the publication of defense motions, pursuant to an agreement with the government, on a defense website, yet then stated she does not possess the authority to authorize release of court documents in response to appellants’ original request before the court, a request which included documents filed with the court such as defense motions. ”
Along with the Center for Constitutional Rights and Assange, the plaintiffs in the case are Salon.com writer Glenn Greenwald, Democracy Now writer Amy Goodman; The Nation writer Jeremy Scahill; Kevin Gosztola of The Dissenter; and attorney Chase Madar.
Little reaction from human rights watchdogs as Gitmo hunger strike continues
After 42 days on hunger strike, though acknowledged by the US military, the protest by prisoners at Guantanamo Bay has so far been largely unacknowledged by international humanitarian organizations.
In a comment to RT the United Nations rights body said it is investigating allegations of mistreatment at America’s detention facility in Cuba.
“While aware of some of the allegations of mistreatment of inmates said to have provoked the hunger strike – which include undue interference with the inmates’ personal effects — we are still trying to confirm the details,” the spokesperson for the UN High Commissioner for Human Rights Navy Pillay said.
The Red Cross, which visited the island prison from February 18 to 23, was one of the few international organizations to comment on the situation at the Guantanamo detention camp. It acknowledged that a hunger strike was actually taking place, but so far the organization has only released a statement, stating “The ICRC believes past and current tensions at Guantanamo to be the direct result of the uncertainty faced by detainees.”
Military censorship makes it quite difficult to access any information about Gitmo prisoners. It was the attorneys for the detainees that first expressed urgency and grave concern over the life-threatening mass hunger strike that reportedly started in the Guantanamo Bay detention facility on February 6.
According to the Center for Constitutional Rights 130 prisoners went on a hunger strike to protest the alleged confiscation of personal items such as photos and mail and the alleged sacrilegious handling of their Korans.
Prison spokesman Navy Capt. Robert Durand, however, acknowledged only 21 inmates to be on hunger strike. He also denied all allegations of prisoners being mistreated.
Even if not for mistreatment and abuse, prisoners could have started the strike just to draw attention to their being kept in Guantanamo, with the US refusing to repatriate them, despite some being cleared for release.
“There are 166 people at Guantanamo. Of those there are probably 20 guys who are bad guys… like Khalid Sheikh Mohammed. The other people… more than half of them – 86 of them have been cleared at least for three years and some during the Bush administration – cleared as innocent people. And they are still there and they are frustrated,” says Thomas Wilner, a lawyer, who used to represent some of the Guantanamo detainees in court.
According to Durand, none of the inmates on hunger strike is in immediate health danger.
Lawyers for the prisoners believe otherwise. They have reported some of their clients had weight loss of up to or more than 20 pounds (8kg) and have been hospitalized. Medical experts say that by day 45, hunger strikers can experience potential blindness and partial hearing loss.
The Center for Constitutional Rights and habeas counsel have sent a letter to US Defense Secretary, Chuck Hagel, urging him “to address this growing crisis at Guantánamo before another man dies at the prison, this time under his watch. The hunger strike should be a wake-up call for the Obama Administration, which cannot continue to ignore the human cost of Guantánamo and put off closing the prison any longer.”
Meanwhile, JTF-GTMO announced that flights to the island prison from South Florida will be terminated on April 5. The step is seen by the prisoners’ attorneys as an attempt by the Defense Department to limit access to their clients.
via Little reaction from human rights watchdogs as Gitmo hunger strike continues — RT News.
via Little reaction from human rights watchdogs as Gitmo hunger strike continues — RT News.
Assange Labeled an ‘Enemy’ of the US in Secret Pentagon Documents
An investigative arm of the Pentagon has termed Wikileaks founder and editor-in-chief Julian Assange, currently holed up and claiming asylum in the Ecuadoran Embassy in London for fear he will be deported to Sweden and thence to the US, and his organization, both “enemies” of the United States.
The Age newspaper in Melbourne Australia is reporting that documents obtained through the US Freedom of Information Act from the Pentagon disclose that an investigation by the Air Force Office of Special Investigations, a counter-intelligence unit, of a military cyber systems analyst based in Britain who had reportedly expressed support for Wikileaks and had attended a demonstration in support of Assange, refers to the analyst as having been “communicating with the enemy, D-104.” The D-104 classification refers to an article of the US Uniform Military Code of Military Justice which prohibits military personnel from “communicating, corresponding or holding intercourse with the enemy.”
This is pretty dangerous language to have, referring to an Australian citizen who many consider to be no more than a working journalist who has been gather information from whistleblowers and disseminating that information to the public. As David Cole, a civil liberties attorney in the US associated with the Center for Constitutional Rights, notes, “The US military is not at war with Wikileaks or with Julian Assange.”
Certainly if a member of the US military were to go to a news organization like the New York Times — or the Melbourne Age for that matter — and leak some kind of damaging secret information exposing US military war crimes, it is inconceivable that the military would call that “communicating with the enemy.” In any case, the military leaker could easily be charged under the military code with offenses like revealing national security secrets or some other serious charge, which would not involve charging any media organization that received information.
The decision by the Pentagon to instead use the D-104 violation to classify Assange as an “enemy” in this context is dangerous because since 9-11-2001, the US government, with the general consent of the courts, has been treating “enemies” of the state in some very frightening extra-judicial ways. Enemies of the US these days can be summarily arrested and taken away to black-site prisons or to a place like Guantanamo without even a requirement that any notice be given to friends or relatives. They can be locked up indefinitely and denied access to a lawyer. They can even be subjected to what is euphemistically called “enhanced interrogation
For the rest of this article by DAVE LINDORFF in ThisCantBeHappening!, the new independent Project Censored Award-winning online alternative newspaper, please go to: www.thiscantbehappening.net/node/1365
via OpEdNews – Article: Assange Labeled an ‘Enemy’ of the US in Secret Pentagon Documents.
via OpEdNews – Article: Assange Labeled an ‘Enemy’ of the US in Secret Pentagon Documents.