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Monday, March 25, 2013

In Leak Case, State Secrecy in Plain Sight

In Leak Case, State Secrecy in Plain Sight

Brendan Smialowski/Agence France-Presse â€" Getty Images

Basic information in pretrial hearings for Pfc. Bradley Manning has been withheld, including dockets of court activity and transcripts of the proceedings.

Reporters covering the government’s prosecution of Pfc. Bradley Manning, who is being court-martialed for conveying secret information to WikiLeaks, have spent a year trying to pierce the veil of secrecy in what is supposed to be a public proceeding.

What documents have been released have been heavily redacted.

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 â€" whether leaking classified documents can be cast as aiding the enemy â€" 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 has admitted to providing some 700,000 documents to 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 document.”

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 restrictions.

E-mail: carr@nytimes.com;


A version of this article appeared in print on March 25, 2013, on page B1 of the New York edition with the headline: In Leak Case, State Secrecy In Plain Sight.