BALTIMORE -- Lawyers for WikiLeaks founder Julian Assange duked it out in federal court on Monday with the government over whether the press and public have enough access to records in the court-martial of Bradley Manning, the Army private first class who has admitted to leaking hundreds of thousands of sensitive documents.
The arguments on Monday were just the latest chapter in the long-running saga of access to court records in the Manning case, which has dragged on for more than three years so far and has often been marked by the military's refusal to release key motions and transcripts. Physical access to hearings has not been at issue, but the military judge overseeing the case, Col. Denise Lind, has kept transcripts and crucial court motions locked away.
The secrecy prompted WikiLeaks founder Julian Assange, along with other activists, to file a lawsuit in May seeking to increase access to the military trial documents. But just as Manning's trial started this month, the Army released hundreds of pretrial documents in redacted form to the public and promised to make more available on a rolling basis. Those efforts may have persuaded U.S. District Judge Ellen Lipton Hollander, who seemed sympathetic to the government's arguments on Monday, that she does not need to intervene.
"The facts have changed," Department of Justice lawyer John Tyler said. Now that many motions and stipulations of expected testimony will be available within one or two days of when they are filed, he said, "there's no need to intervene … owing to the mechanism that the Army has put in place."
The government also pointed to unofficial transcripts being produced by a nonprofit group as proof that it was doing its best to open the trial up.
"This is where deference is owed to the military," Tyler said. "It is the duty of this court to assume that the military will act pursuant to its word."
The government's last-minute change of heart may save it from having to answer a larger question: whether the First Amendment right to access to court files, which is a well-established principle in civilian courts, extends to the military.
The military's highest court ruled in April that it lacked the jurisdiction to decide that question, suggesting that the plaintiffs in the case should try a federal district court. Their lawyers at the Center for Constitutional Rights did so, seeking a preliminary injunction against the judge overseeing Manning's trial, Col. Denise Lind.
On Monday the government argued that a civilian judge did not have the authority to intercede in a military case, at least not when the public was not being fundamentally harmed by their lack of access. That lead Hollander to question whether those seeking access to court records were stuck in a legal "whipsaw," with no place to go.
While acknowledging that the government has made "significant concessions" in recent days, CCR lawyer Shayana Kadidal said that Hollander did have the right to act, and in fact needed to do so to make sure journalists could adequately cover the case. Kadidal said the government needed to do more to release pretrial transcripts and summaries of the judge's off-the-record sessions with attorneys.
"It simply can't be the case that some anonymous military official decides which documents get redacted," said CCR lawyer Shayana Kadidal. "I think the First Amendment demands more here."
Hollander expressed skepticism that she should act to intercede in the military trial, repeatedly asking under what legal authority she could act. She did not indicate when or how she would rule, but her decision on whether to issue a preliminary injunction ordering greater records disclosure is expected within one or two days.