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Military Judge Runs A Shell Game

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opednews.com Headlined to None 6/15/13

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Nice distraction, putting attention on "who is credentialed" when the substantive issue us who gets access.  The Judge's MCM has no index listing for "press" or "media."  There is a listing for "public," which by definition includes all reporters, as well as all military personnel.  That's in Role 806(a), which also sets the primary expectation that "courts-martial shall be open to the public." 

That "shall" in the rule means that it's a judge's primary obligation to open the court-martial to the public, not an option, although the rule provides limited exceptions under exigent circumstances. The rule's discussion section states: "However, such exigencies should not be manipulated to prevent attendance at a court-martial."

RCM 802 is a jargon reference to pre-trial hearings that have already been held. 

The provision of a "contemporaneous transcript" is another distraction that leads attention away from the need for a meaningfully public trial. 

That "the court is not interested" in all this bespeaks a disdain for the public that one would expect to be better concealed.  

And that the court has, in effect outsourced its responsibility to control the courtroom and access to it, as described in Rule 806(b)(1), suggests possible dereliction of duty.

Turning to Reader Supported News's motion, without identifying it beyond "the request for public access or in the alternative motion to intervene to vindicate right to public access," Judge Col. Lind made findings: 

"One. The proceedings have been open to the public since the start of the trial"." 

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This may be technically correct and short of a false statement, but it suggests a non-existent state of affairs sharply at odds with the widely-observed restraints put on public access by the judge, the government, or its contractors.  "The court martial of Manning," observed the Huffington Post, "has been  surrounded by secrecy and security ." 

An example of what amounts to military doublespeak is that the court says it's not "structured" to provide a daily transcript, as if that wasn't something other courts do and the Army could do if it wanted to.  Worse, even though the Freedom of the Press Foundation is paying for its own stenographers, the judge continues to tolerate interference with the stenographers' ability to do their job. 

 

"Two. Neither the court nor anyone acting pursuant to order of the court has specifically excluded any person from observing the proceedings either in court or in a designated overflow area." 

One might argue that this is another technically correct statement in the furtherance of falsehood, but it's more deceitful that that.  Dozens if not hundreds of members of the public have been excluded, by apparent design, either implemented or tolerated by the court. 

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But they have not been "specifically" excluded and that "specifically" has a serious lawyerly purpose in the worst sense of the word.  Rule 806(b)(1) says, in part: "When excluding specific persons, the military judge must make findings on the record establishing the reason for the exclusion, the basis for the military judge's belief that exclusion is necessary, and that the exclusion is as narrowly tailored as possible." 

Here, where the court is allowing large-scale, random exclusions there's no need for findings on the record of the basis for the exclusion, or concern that the exclusion is narrowly tailored.  The exclusion is not narrowly tailored and thus gives the appearance of bad faith. 

"Three. Reasonable policies and procedures for media registration and credentialing have been established and published by the Military District of Washington as set forth in appellate exhibit 561." 

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Vermonter living in Woodstock: elected to five terms (served 20 years) as side judge (sitting in Superior, Family, and Small Claims Courts); public radio producer, "The Panther Program" -- nationally distributed, three albums (at CD Baby), some (more...)
 

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And everyone knows it... after all, it's from the ... by mrk * on Sunday, Jun 16, 2013 at 6:17:03 PM
Interesting.  The portrait you paint or rathe... by Bill Dugan on Monday, Jun 17, 2013 at 6:55:50 AM