There is something very wrong with this picture: Today I am in a federal court arguing that the press and public have a right to have access to daily transcripts and court documents in the trial of whistleblower Bradley Manning; meanwhile, Verizon is under government orders to turn over people’s calling records on a daily basis.
Similarly, next month, my colleague will argue in federal court that the government can’t simply place American citizens on secret “kill lists” without due process; meanwhile, the National Security Agency can go to hand-picked FISA judges to get direct access to the servers of Apple, Google, Facebook, Skype and others.
We’re on the wrong side of a one-way mirror: The government can see us through it, but from our side we can’t see much of what it does in our name and with our tax dollars. Seven years into the self-styled “most transparent administration in history,” our lives - and the news media’s phone records - are as transparent as ever to the NSA, while the government is more opaque than ever.
We have become a nation in which massive surveillance of millions of citizens is deemed necessary to safeguard our democracy, while whistleblowers who uncover government wrongdoing are prosecuted as traitors. In this Orwellian world, the government has the right to know everything we are doing, but we do not have a right to know much of anything about what the government is doing.
This problem of one-way transparency is exemplified by how the government is dealing with the most important criminal trial involving leaks of classified information since the Pentagon Papers: the court-martial of Bradley Manning.
The government has refused to provide daily transcripts or audio tapes of the proceedings and media access to the briefs and court orders, making it nearly impossible for journalists to cover the trial accurately. In the pre-trial proceedings, the military judge went so far as to read her decisions out for hours at a time rather than provide transcripts. The situation is so bad that internet activists have raised almost $60,000 to pay for their own stenographer in the media room - and that will only pay for half the trial.
In ordinary criminal trials in federal courts, the media have access to daily transcripts against which they can check their notes of what happened in court; they have access to the parties’ briefs so they can read them beforehand and make sense of what is being said; and the judges publish their orders so people can read and understand their legal decisions. In Manning’s case, none of those things were made available by the government until, in a desperate attempt to fend off our lawsuit, they released several thousand pages of papers a week into the trial (so arbitrarily redacted that the judge’s name was blacked out of all of her own orders).
The reason for these efforts to suppress the ability to cover the trial is simple: The administration wants to make an example out of Manning, and if the process were open, as our Constitution requires, his example would be an inspiring one and not the deterrent one the government wants.
As the Supreme Court has said repeatedly, openness enhances the accuracy and fairness of judicial proceedings. It is essential for the proper functioning of a democratic government and society. If our current lawsuit fails, Manning’s trial will continue under conditions where journalists and the public will be unable as a practical matter to follow what is going on in the courtroom.
Having the public watching means that judges and prosecutors will carry out their duties diligently and fairly; but it also means that witnesses will be less likely to perjure themselves knowing that the whole world is watching, and in fact, that new witnesses may come out of the woodwork. In effect, the public serves as a fact-check on what is transpiring in the court. That can’t happen if dozens of prosecution witnesses testify in secret, as is planned, or if the pretrial filings are only released with massive, arbitrary redactions - all of which is happening in Manning’s case. This is precisely the kind of dangerous government secrecy that convinces people that leaks are essential for the preservation of our democracy.