The lack of contemporaneous access to court documents has caused irreparable harm to the American public's right to scrutinize the conduct of military prosecutors and the rulings of the presiding military judge. This will surely taint the final outcome of Pfc Bradley Manning's trial.
"Military confinement. That's like a term of art," said the spokesperson for the military district of Washington (MDW) – which is responsible for convening a fair and impartial trial for the accused – to an American TV reporter last summer. The reporter was known for investigating infotainment websites during pre-trial sessions. "The practical effect?" commented the spokesman to the reporter. "He's in jail."
As we wait for the second circuit to rule on the Department of Justice's midnight appeal of Judge Katherine Forrest's permanent injunction on indefinite military detention of American citizens without trial or charges, Jennifer Elsea, a legislative attorney who provides policy and legal analysis to the US Congress, reminds us that aiding the enemy (pdf) is "one of two offenses under the Uniform Code of Military Justice that apply to 'any person', rather than just members of the military, like Manning."
Despite Manning having been held longer than any accused awaiting court martial in US military law, Judge Lind ruled in February that the government had not violated his speedy trial rights. Moreover, in a case where the first amendment is vulnerable to chill and prohibition – namely, because the accused is charged with aiding the enemy and espionage for disclosing government information to the public – the public was denied access to not only the court's speedy trial ruling, but also over 30,000 pages of court documents until the third day of Manning's trial, which was 1,103 days into his pretrial confinement and 18 months into the legal proceeding.
It was unfounded allegations by a confidential government informant that Manning had leaked top-secret material (he had not) that was used as the basis of his pre-trial confinement in May 2010. That misinformation was amplified in the mainstream media, spoon-fed into a feeding frenzy by prominent government officials, calling for the death penalty for Manning; the designation of WikiLeaks as a terrorist organization; and the criminal prosecution of Julian Assange.
At Fort George "Orwell" Meade, home of the NSA and the US Defense Information School, managing the message for a "docketless" pre-trial was facilitated by the spokesperson for the military district of Washington. He was tasked with explaining the proceedings to a press pool, forced to compare notes after mile-a-minute recitations into the court record by the presiding military judge, Colonel Denise Lind.
"You would say, 'He's in a jail'?" asked the American TV reporter of her de facto MDW editor. The same reporter also inquired later whether I found George Clooney handsome. "I think 'military confinement' is the most accurate," replied the spokesperson. "Luckily, I have nothing to do with that."
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For five and a half months, the former spokesperson for the MDW did not disclose to the anemic press that he was a former member of the prosecution. In fact, his emails with the Quantico Brig commander about Manning's underwear removal are part of the evidentiary record concerning Manning's unlawful pretrial punishment at the Quantico Brig, where he was stripped of his clothing against the recommendation of the Brig mental health providers. In light of this revelation, the military district of Washington recently required credentialed media to sign "ground rules" prohibiting them from naming staff without written approval.
On the first day of his trial, the public did not have a transcript of Manning's formal plea to ten lesser included offenses (LIOs), which included substituted dates for the offenses charged against him. The public did not know that this earnest young soldier volunteered to plea to the LIO for an April transmission of the Garani video three weeks after Judge Lind "cut his defense off at the knees", in his attorney David Coombs' words, by precluding evidence of the actual lack of harm from his disclosures.
Manning made his plea knowing the prosecution lacked forensic evidence for a transmission in November 2009. The November transmission fits into the US government's theory of the case that ties it to the grand jury investigation of WikiLeaks.
The public also did not know that military prosecutors not only rejected Manning's proposed plea, but even threatened to charge him with an additional ten-year offense on top of the life sentence plus 149 years he already faces if convicted on their case.
Moreover, the public did not know that Manning is charged with a newfangled offense, which is not tied to any existing US federal criminal violation or punitive article of the Uniform Code of Military Justice, called "wanton publication". All that military prosecutors have to prove to convict him is that he had knew that terrorists use the internet.
Transparency is vital to the public's perception of the legitimacy of the criminal proceedings. The obscurity managed by Col Denise Lind, the military district of Washington, and the US army has discredited the imminent outcome.