Bradley Manning

Last week on Law and Disorder Radio -- a weekly hour long program that airs Monday mornings at 9:00 a.m. EST on WBAI and around the country throughout the week, hosted by attorneys Heidi Boghosian, Michael S. Smith and Michael Ratner (Center for Constitutional Rights), they provided another update on Bradley Manning, an alleged whistleb blower the US government has now held for two years.

Heidi Boghosian:   We continue our updates on the Bradley Manning trial.  Senior staff attorney Shane Kadidal from the Center for Constitutional Rights recently returned from one of the hearings in Fort Meade, Maryland.  Welcome, Shane to Law & Disorder.

Shane Kadidal: Thanks for having me, Michael.

Michael Smith:  You know, Heidi and I, were down at the Mumia demonstration in Washington, DC yesterday.   We took the train down from New York.  We're sitting on the train, passing the Fort Meade exit on the train, you were sitting in that courtroom, in that semi-secret trial of Bradley Manning.  And we thought about, 'Well we'll get to talk to you today about what's going on in that semi-secret trial? And what do you think's at stake?

Heidi Boghosian: [laughing]  Are you allowed to talk about this, Shane?

Shane Kadidal: [Laughing.]  We are. It was funny sitting there to contrast, for instance, to Guantanamo occasionally classified hearings and every word of what's said in there is presumed classified until you get told otherwise.  It wasn't like that, but it was odd in other ways.

Michael Smith: Well it's odd because it's not like you can't say what you want to say but because  you don't have access to the court pleadings, you don't have access to the off-the-record discussions with the judge, you don't have access to court orders so a lot of this trial is a secret trial which I always thought to be against the First Amendment of the Constitution.

Shane Kadidal:  Right. It's interesting to note two things about that.  You know, first of all, people think about this First Amendment right to access to judicial proceedings being about basic Democratic values.  It's good to have government in the sunshine just as a philosophical principle.  But that's not what the Supreme Court says about it.  What they said about that very clearly in a number of cases in the late seventies and the early eighties, you know, openness actually helps the truth finding function of trials.  It gives a disincentive to witnesses to commit perjury.  It lets new witnesses come out of the woodwork and so forth.  By having the factual basis for legal ruling sort of exposed to the light of day and having the legal arguments exposed as well, it means that the court is less likely to make mistakes.  And that makes a difference when it comes down to accuracy.  And you can imagine how this might play out in a case like Manning's where an awful lot is riding, for instance, on the testimony of a supposedly quite drugged out and unreliable informer whose name actually happens to be redacted from the few public documents that we do have.  So that's one point, that openness helps the accuracy of judicial proceedings -- and it's especially important in cases like this.  The other is sort of a meta-point about media coverage.  While I was down there, there were only about two or three reporters that came out of the media room  during the breaks and sort of milled about and talked to us which I think was a little bit shocking giving the significance of this case.  You know, supposedly the largest set of leaks in American history, a set of leaks where the documents dominated news coverage globally for a good year-and-a-half.  And yet there are only two or three reporters there.  And I think it shows that when the government manages to choke off the flow of interesting detail about a case by redacting it out of documents or not releasing documents or holding proceedings off the public record, that is almost more effective at diminishing press coverage of an issue than completely barring the press from the courtroom as happens in classified hearings.  Because completely barring the press piques the press interest but simply blacking out all the colorful detail or the stuff that kind of makes a story interesting just results in boring coverage and eventually people sort of give up.  And I think that might be what's happening here.

Heidi Boghosian:  Well, Shane, since the media wasn't there, can you give us a sort of nutshell version of what happened?

Shane Kadidal:  You know, at the Tuesday hearing which I was at, one of the first issues up actually was around our letter to the court -- CCR's letter demanding that the court release its own orders including the protective order that governs what can be sealed off from public access and what can be released and what should be redacted.  So the court's own orders, then all the government's motions and the government's responses to the defense's motions.  And then a third subject which is an awful lot of the argument happens in what are called 802 conferences where the parties can agree to discuss anything in chambers and the public never has any sense of the legal arguments that are made or the conclusions that happen which is kind of different from a lot of public access issues because it means both parties can collude to keep something out of the public sight.  A little different from the usual situation where it's usually the government trying to keep something out.

Michael Smith.  Especially in a shocking case like this with, for example, one of the things that Manning was allegedly accused of releasing was a 39 minute video called The Collateral Murder Video where you've got US soldiers in a helicopter murdering two Reuters journalists and then seriously injuring two children.  It's all on video.  It's a War Crime.  They're trying to cover this up in this semi-secret trial. It's really shocking.  I remember the famous Judge Damon Keith saying, "Democracy dies behind closed doors."  So what do you think your chances are of prying open those doors?

Shane Kadidal: Well I think maybe on appeal they'll be good.  But what we learned on Tuesday was that this judge [Col Denise Lind] doesn't really want to hear it.  So the first thing she said was, 'You know, the Center of Constitutional Rights has sent a lawyer down here and asked for permission to address the court and asked for all this release including making all of these documents public and that motion which is essentially a motion to intervene -- is denied.

Michael Smith:  Reporters Committee for Freedom of the Press which I think is 45  press organizations did the same thing which is the same thing you guys did at the CCR.

Shane Kadidal:  Right.  They wrote some letters as well.  And, you know, the letters kind of the court had disappeared into a black hole so we sent a second letter to the defense council so that he could kind of read it out in open court.  The judge revealed yesterday that she had, in fact, received both letters, which I guess was good news.  But the bottom line is this allows to go up the chain to the two courts of appeals in the military system  that stand above this judge and demand that we get immediate public access to these documents. And it was a First Amendment case so I was very clear that being deprived of public access to judicial proceedings even for a short period of time is irreparable injury and that kind of principle goes back to the Pentagon Papers case really. 

Heidi Boghosian: What did Michael Ratner say in his piece last week in the Guardian?

Shane Kadidal:  A terrific piece which is worth reading.  But, you know, a couple of things. First that Manning's revelations including that the Collateral Murder video you know really were made in the face of military lies about what had actually happened.  You know, the military's initial response was that there was no question that that gunfight involved a hostile force when it turned out that two children and a bunch of journalists were among the people who were shot.  But I think that the bigger picture, I think it's ironic that the government's heavy handed approach -- as Michael said in his piece -- really only serves to emphasize the motivations for whistle blowing of the sort that Bradley Manning is now accused of. It's this kind of blanket approach on the part of the government to secrecy that forces people to reveal things by going outside the letter of the law.

Michael Smith: Shane Kadidal, who is the senior attorney at the Center for Constitutional Rights has been down at Fort Meade, Maryland on behalf of the center at the Bradley Manning trial.  We'll keep checking in on you, Shane.  Good luck with your appeal.