       CENTER FOR CONSTITUTIONAL RIGHTS et al., Appellants

                                         v.

UNITED STATES and COLONEL DENISE LIND, Military Judge, Appellees

                                  No. 12-8027
                    Crim. App. Misc. No. 20120514

       United States Court of Appeals for the Armed Forces

                         Argued October 10, 2012

                          Decided April 16, 2013

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. BAKER, C.J., filed a dissenting opinion,
in which COX, S.J., joined. COX, S.J., filed a dissenting
opinion in which BAKER, C.J., joined.

                                     Counsel

For Appellants: Shayana D. Kadidal, Esq. (argued); J. Wells
Dixon, Esq., Baher Azmy, Esq., Michael Ratner, Esq., and
Jonathan Hafetz, Esq. (on brief).

For Appellees: Captain Chad M. Fisher (argued); Lieutenant
Colonel Amber J. Roach (on brief); Major Robert Rodrigues.

Amicus Curiae for Appellants on Behalf of the Reporters
Committee for Freedom of the Press and Thirty-One News Media
Organizations: Gregg P. Leslie, Esq., and Kristen Rasmussen,
Esq., et al. (on brief).

Military Judge:    Denise Lind


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

     Judge STUCKY delivered the opinion of the Court.

     Appellants1 appeal the United States Army Court of Criminal

Appeals’ (CCA) summary denial of their petition for a writ of

mandamus and prohibition.   See Center for Constitutional Rights

v. United States and Colonel Denise Lind, Misc. No. 20120514 (A.

Ct. Crim. App. June 21, 2012).   Appellants summarized their

request to this Court, as follows:

          (1) Petitioner-Appellants request a writ of
     mandamus and prohibition to compel the trial court to
     grant public access to documents filed in United
     States v. Manning, including without limitation
     (a) all papers and pleadings filed by the parties,
     including particularly the government’s motion papers
     and responses to defense motions, (b) court orders,
     and (c) transcripts of all proceedings, and that any
     further restrictions on public access to the
     proceedings or documents therein only occur following
     notice to the public of any contemplated restrictions,
     an opportunity for interested parties to be heard, and
     case-by-case specific findings of necessity after
     consideration of less-restrictive alternatives; and

          (2) Petitioner-Appellants request a writ of
     mandamus and/or prohibition ordering the trial judge
     to reconstitute past R.C.M. 802 conferences in the
     Manning case in open court, in a matter not
     inconsistent with the First Amendment right of public
     access, and to conduct all future conferences in a
     matter not inconsistent with the First Amendment right
     of public access.




1
  Center for Constitutional Rights, Glenn Greenwald, Salon.com,
Jeremy Scahill, The Nation, Amy Goodman, Democracy Now!, Chase
Madar, Kevin Gosztola, Julian Assange, and Wikileaks.

                                 2
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

We hold that this Court is without jurisdiction to grant the

requested relief.2

                          I.   Background

     Charges were preferred against Private First Class (PFC)

Bradley E. Manning [hereinafter the accused], alleging, inter

alia that he provided intelligence to the enemy; provided

national security information to a person not entitled to

receive it; stole, purloined, or knowingly converted to his own

use or the use of another certain United States databases,

providing intelligence to the enemy, and violated certain lawful

general regulations.   Articles 92, 109, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 892, 909, 934 (2006).

     We denied an earlier writ-appeal submitted by some of the

appellants seeking guaranteed access to seats in the gallery of

the hearing room for the accused’s Article 32, UCMJ, 10 U.S.C.

§ 832 (2006), investigation and the right to be present for all

sessions of the hearing, including those closed to the public.

Assange and Wikileaks v. United States and Lieutenant Colonel

Paul Almanza, 71 M.J. 100 (C.A.A.F. 2012) (summary disposition).

The charges were referred to a general court-martial on February

3, 2012.




2
  In light of our jurisdictional holding, we need not reach the
granted or other specified issues.

                                 3
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

     After oral argument was had on the current writ-appeal, we

specified three issues for the parties to brief:     (1) whether

this Court and the CCA have subject-matter jurisdiction over

Appellants’ request for extraordinary relief; (2) whether

Appellants, as non-parties, have standing to file a request for

extraordinary relief in this Court or the CCA; and (3) assuming

jurisdiction, which officials are lawfully authorized to direct

release of the records and to what extent Appellants must first

demonstrate that they requested release from an appropriate

release official.   We invited counsel for the accused to file a

brief on the issues, but they declined to do so.

                    II.   Arguments of the Parties

     Appellants argue that, for issues arising before the

findings and sentence of a court-martial, military appellate

courts have potential, also known as anticipatory, jurisdiction

to entertain petitions for extraordinary relief.     To a great

extent, they rely on the Supreme Court’s potential jurisdiction

jurisprudence from Federal Trade Comm’n v. Dean Foods Co., 384

U.S. 597, 603–04 (1966), and this Court’s judgment in ABC, Inc.

v. Powell, 47 M.J. 363 (C.A.A.F. 1997).

     The Government argues that the authority to release the

documents “is committed by statute and regulation to the Judge

Advocate General (TJAG),” not the military judge, and that this

administrative decision is not subject to review by the CCA or


                                   4
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

this Court.   The Government suggests that review by an Article

III court is the appropriate forum for litigation of any TJAG

decision respecting the release of documents.

                         III.   Jurisdiction

          Federal courts are courts of limited
     jurisdiction. They possess only that power authorized
     by Constitution and statute, which is not to be
     expanded by judicial decree. It is to be presumed
     that a cause lies outside this limited jurisdiction,
     and the burden of establishing the contrary rests upon
     the party asserting jurisdiction

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994) (citations omitted); see generally Henry M. Hart Jr., The

Power of Congress to Limit the Jurisdiction of Federal Courts:

An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953) (for the

classical treatment of the subject).    “The requirement that

jurisdiction be established as a threshold matter ‘springs from

the nature and limits of the judicial power of the United

States’ and is ‘inflexible and without exception.’”    Steel Co.

v. Citizens for a Better Environment, 523 U.S. 83, 94–95 (1998)

(citing Mansfield, Coldwater & Lake Mich. Ry. Co. v. Swan, 111

U.S. 379, 382 (1884)).   “On every writ of error or appeal, the

first and fundamental question is that of jurisdiction . . . .

This question the court is bound to ask and answer for itself,

even when not otherwise suggested . . . .”     Great Southern Fire

Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900).




                                  5
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

     In particular, this Court, and courts-martial in general,

being creatures of Congress created under the Article I power to

regulate the armed forces, must exercise their jurisdiction in

strict compliance with authorizing statutes.   As the Supreme

Court held in Clinton v. Goldsmith:

          When Congress exercised its power to govern and
     regulate the Armed Forces by establishing the CAAF,
     see U.S. Const. Art. I, § 8, cl. 14; 10 U.S.C. § 941;
     see generally Weiss v. United States, 510 U.S. 163,
     166–169 (1994), it confined the court’s jurisdiction
     to the review of specified sentences imposed by
     courts-martial: the CAAF has the power to act “only
     with respect to the findings and sentence as approved
     by the [court-martial’s] convening authority and as
     affirmed or set aside as incorrect in law by the Court
     of Criminal Appeals.” 10 U.S.C. § 867(c).

526 U.S. 529, 533–34 (1999); see also United States v. Padilla,

1 C.M.A. 603, 606, 5 C.M.R. 31, 34 (1952) (noting that courts-

martial are “tribunals of special and limited jurisdiction” and

“must be convened strictly in accordance with statutory

requirements”).   Although Congress has authorized the CCAs a

somewhat broader scope of review, it has similarly limited their

jurisdiction.   See Article 66(c), UCMJ, 10 U.S.C. § 866(c)

(2006).

     This Court is empowered to issue extraordinary writs under

the All Writs Act.   Goldsmith, 526 U.S. at 534 (citing Noyd v.

Bond, 395 U.S. 683, 695 n.7 (1969)).   That act provides that:

“[A]ll courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective


                                 6
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

jurisdictions and agreeable to the usages and principles of

law.”    28 U.S.C. § 1651(a) (2006).   “[T]he express terms of the

Act confine the power of the CAAF to issuing process ‘in aid of’

its existing statutory jurisdiction; the Act does not enlarge

that jurisdiction.”    Goldsmith, 526 U.S. at 534–35; see United

States v. Denedo, 556 U.S. 904, 911 (2009) (“As the text of the

All Writs Act recognizes, a court’s power to issue any form of

relief -- extraordinary or otherwise -- is contingent on that

court’s subject-matter jurisdiction over the case or

controversy.”).    As the Supreme Court noted, this Court “is not

given authority, by the All Writs Act or otherwise, to oversee

all matters arguably related to military justice.”    Goldsmith,

526 U.S. at 536.    We recognized long ago that the “Act does not

increase the areas of this Court’s jurisdiction beyond the

limitations set out in [Article 67], UCMJ.”    Hendrix v. Warden,

23 C.M.A. 227, 228, 49 C.M.R. 146, 147 (1974).

        Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2006), our

jurisdictional statute, states:

        In any case reviewed by it, the Court of Appeals for the
        Armed Forces may act only with respect to the findings and
        sentence as approved by the convening authority and as
        affirmed or set aside as incorrect in law by the Court of
        Criminal Appeals.

        It is vital to note what we are faced with here.   This is

not a case like United States v. Lopez de Victoria, where the

question was the interpretation of our Article 67 jurisdiction


                                   7
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

within an existing (Article 62) statutory framework.    66 M.J. 67

(C.A.A.F. 2008).   This case is not like Denedo v. United States,

where the question was the availability of the writ of error

coram nobis in cases other than those in which fundamental

jurisdictional objections were asserted.    66 M.J. 114 (C.A.A.F.

2008), aff’d., 556 U.S. 904 (2009).     Nor is it like Hasan v.

Gross, where the harm alleged by the appellant -- that the

military judge was biased -- had the potential to directly

affect the findings and sentence.     71 M.J. 416 (C.A.A.F. 2012).

     Finally, this case differs in a very important respect from

Powell, 47 M.J. 363.   In that case, which dealt with the closure

of an Article 32 investigation to the press and the public, the

accused joined in the proceedings in order to vindicate his

right to a public trial.   Id.   Here, the accused has steadfastly

refused to join in the litigation, or, despite the Court’s

invitation, to file a brief on the questions presented.    We thus

are asked to adjudicate what amounts to a civil action,

maintained by persons who are strangers to the court-martial,

asking for relief -- expedited access to certain documents --

that has no bearing on any findings and sentence that may

eventually be adjudged by the court-martial.

     Appellants assert that (1) the trial court “had

jurisdiction to consider -- and did consider -- [Appellants’]

claims”; (2) the CCA had potential jurisdiction to issue


                                  8
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

extraordinary relief because PFC Manning could receive a

sentence that would invoke the CCA’s appellate jurisdiction; and

(3) this Court has potential jurisdiction under Article 67 to

review the CCA’s judgment.    Appellants premise their potential

jurisdiction argument on Dean Foods Co., 384 U.S. at 603–04, an

antitrust case in which the Supreme Court held that the Federal

Trade Commission had implied authority under the All Writs Act

to seek injunctive relief in a federal court of appeals.       In

that case, however, the Supreme Court confined the doctrine of

potential jurisdiction to cases “within the appellate

jurisdiction of the higher court” and “cases which are within

its appellate jurisdiction although no appeal has been

perfected.”   Id. at 603.    Ultimately, then, any potential

jurisdiction we may have in this case must turn on the extent of

our own statutory jurisdiction, which is to be found in Article

67, UCMJ, as interpreted by the Supreme Court.

     Appellants suggest that this case does not differ

significantly from our decision in Powell, and that Congress has

done nothing in the intervening years to preclude the relief

they are requesting.   But (1) Powell was decided before

Goldsmith clarified our understanding of the limits of our

authority under the All Writs Act, and (2) we assumed

jurisdiction in that case without considering the question.

More immediately, the accused in Powell joined the media as a


                                   9
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

party in seeking a writ of mandamus to vindicate his

constitutional right to a public trial -- something which had

immediate relevance to the potential findings and sentence of

his court-martial.   We are not foreclosing the accused from

testing the scope of public access, but he has not done so here.

     On these facts, we hold that Appellants failed to meet

their burden of establishing that this Court or the CCA has

jurisdiction to grant Appellants the relief they seek.

                           IV.   Judgment

     Appellants’ writ-appeal is dismissed.




                                 10
Center for Constitutional Rights et al. v. United States,
No. 12-0827/AR

     BAKER, Chief Judge, with whom COX, Senior Judge, joins

(dissenting):

     The general public has a qualified constitutional right of

access to criminal trials.    Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555 (1980) (plurality opinion).    Public

access to a criminal trial includes appropriate access to

filings.    Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597

(1978).    “Congress intended that, to the extent ‘practicable,’

trial by court-martial should resemble a criminal trial in a

federal district court.”    United States v. Valigura, 54 M.J.

187, 191 (C.A.A.F. 2000).    The right to a public trial is

embedded in Rule for Courts-Martial (R.C.M.) 806, which provides

that “[e]xcept as otherwise provided in this rule, courts-

martial shall be open to the public.”

     However, what the scope of this right might be in general,

or in the context of this specific court-martial, remains

unknown, and will remain so. 1   That is because this Court has

determined that a military judge’s application of R.C.M. 806 to

an ongoing court-martial falls outside this Court’s jurisdiction


1
  The analysis to R.C.M. 806 recognizes as much, stating “[t]he
applicability of these [Supreme Court] cases to courts-martial
is not certain . . . . Nevertheless the rule and the discussion
are based on recognition of the value to the public of normally
having courts-martial open to the public. That is particularly
true since the public includes members of the military
community.” Manual for Courts-Martial, United States, Analysis
of the Rules for Courts-Martial app. 21 at A21-48 (2012 ed.).
Center for Constitutional Rights et al. v. United States,
No. 12-0827/AR

to review.    As this Court and the Army Court have previously

concluded, “public confidence in matters of military justice

would quickly erode if courts-martial were arbitrarily closed to

the public.”    United States v. Scott, 48 M.J. 663, 665 (A. Ct.

Crim. App. 1998) (quoting United States v. Travers, 25 M.J. 61,

62 (C.M.A. 1987)).    As a result, I respectfully dissent.

     There are two threshold issues in this case.    First, does

the Court have jurisdiction to hear this extraordinary writ

petition?    Second, does a nonparty to the court-martial have

standing to assert a right to public access to this court-

martial in a context where the accused has not asserted such a

right himself?

     It is well settled that the media have standing to complain

if access to courts has been denied or unconstitutionally

restricted.    Press-Enterprise Co. v. Superior Court, 478 U.S. 1,

7 (1986) (“The right to an open public trial is a shared right

of the accused and the public, the common concern being the

assurance of fairness.”); Globe Newspaper Co. v. Superior Court,

457 U.S. 596, 603 (1982); ABC, Inc. v. Powell, 47 M.J. 363, 365

(C.A.A.F. 1997) (“[W]hen an accused is entitled to a public

hearing, the press enjoys the same right and has standing to

complain if access is denied.”); see also Washington Post v.

Robinson, 935 F.2d 282, 288-290 (D.C. Cir. 1991) (holding that

the press and the public should have notice of closure to have

                                  2
Center for Constitutional Rights et al. v. United States,
No. 12-0827/AR

an opportunity to raise a First Amendment right of access

claim).

     On the jurisdictional question, the majority relies on

Clinton v. Goldsmith, 526 U.S. 529 (1999), which is

distinguishable from Appellants’ case.     While Goldsmith provides

the current state of the law regarding this Court’s ability to

issue writs under the All Writs Act, neither the facts of

Goldsmith nor the jurisdictional proscriptions contained therein

apply to Appellants’ case.     Goldsmith concerned an

administrative matter that was completely unreviewable by this

Court.    Id. at 535.   In contrast, the writ before this Court

appeals a specific ruling of a specific Rule for Courts-Martial

in a specific and ongoing court-martial.     The issue does not

address the application of the Freedom of Information Act, a

clear collateral matter entrusted to other courts, but a

military judge’s application of R.C.M. 806 to a specific court-

martial.    Appellate review of military judges’ rulings in

courts-martial is at the core of this Court’s jurisdiction.

That is what we do.

     Furthermore, what Goldsmith proscribes does not apply here.

Goldsmith bars this Court from exercising “continuing

jurisdiction” over a previously resolved matter or from

intervening with the “independent action” of a separate military

agency or the executive branch.     526 U.S. at 536.    In the

                                   3
Center for Constitutional Rights et al. v. United States,
No. 12-0827/AR

current case, the court-martial underlying this writ-appeal has

not been resolved, nor would exercising jurisdiction here

constitute intervening with the “independent action” of a

separate military agency or the executive branch.

     In solely isolating the text of Article 67, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 867 (2006), the majority

misses the greater whole.   Congress established a three-tier

military justice system with adoption of the Uniform Code of

Military Justice, and four tiers when Supreme Court review was

added in 1984, when the Military Justice Act of 1983 took

effect.    Military Justice Act of 1983, Pub. L. No. 98-209, § 10,

97 Stat. 1393, 1405-06 (1983) (codified as amended at 28 U.S.C.

§ 1259 and 10 U.S.C. § 867a).   Congress did not intend for

military judges to operate without review when applying the

Rules for Courts-Martial or the Military Rules of Evidence.

Neither did Congress intend that review to come in the form of

collateral appeal to Article III courts in the context of

ongoing courts-martial.   That would not provide for a uniform

application of the law between services and between courts-

martial.   It would also be unworkable.

     The point is illustrated with respect to the application of

R.C.M. 806, the rule at issue in this case.   It states:

     (a) In general. Except as otherwise provided in this
     rule, courts-martial shall be open to the public. For


                                  4
Center for Constitutional Rights et al. v. United States,
No. 12-0827/AR

     purposes of this rule, “public” includes members of both
     the military and civilian communities.

Public access includes appropriate access to court records and

filings.    In Nixon v. Warner Communications, for example, the

Court stated:    “[i]t is clear that the courts of this country

recognize a general right to inspect and copy public records and

documents, including judicial records and documents.”    435 U.S.

at 597 (footnote omitted).    As the Third Circuit stated in

United States v. Antar, “[i]t would be an odd result indeed were

we to declare that our courtrooms must be open, but that

transcripts of the proceedings occurring there may be closed,

for what exists of the right of access if it extends only to

those who can squeeze through the door?”     38 F.3d 1348, 1360 (3d

Cir. 1994).     However, the right to judicial records is not

absolute.    As the Supreme Court noted, “[e]very court has

supervisory power over its own records and files, and access has

been denied where court files might have become a vehicle for

improper uses.”    Nixon, 435 U.S. at 598.

     As detailed above, this Court, like other courts, has

determined that members of the public have standing to assert

the right to public access.    The question, then, is one of

appellate jurisdiction to review a military judge’s application

of R.C.M. 806, or, perhaps, the failure to apply R.C.M. 806.

Under the majority’s reading of the UCMJ, R.C.M. 806 rulings


                                   5
Center for Constitutional Rights et al. v. United States,
No. 12-0827/AR

regarding public access to courts-martial are unreviewable by

those courts established by Congress to adjudicate military

justice appeals because public access issues are raised before

the findings and sentence are approved by the convening

authority.   Of course public access issues would arise before

the findings and sentence are approved; a public trial

necessarily occurs before findings and sentencing.

     Moreover, though the majority claims otherwise, today’s

opinion bars this Court from exercising jurisdiction in an

appeal arising from an accused’s assertion of his R.C.M. 806

right to a public trial.   That is because the majority’s view of

jurisdiction hinges entirely on the words in Article 67, UCMJ:

“[t]he Court of Appeals for the Armed Forces may act only with

respect to the findings and sentence as approved by the

convening authority.”

     The majority’s interpretation leaves collateral appeal to

Article III courts as the sole mechanism to vindicate the right

to a public trial found in R.C.M. 806 beyond the initial good

judgment of the military judge.   This is unworkable and cannot

reflect congressional design or presidential intent.   Among

other things, such a reading would result in the uneven

application of the law depending, as it would, on the fortuity

of the geographic locale where a court-martial is convened.    In

the case of overseas courts-martial it is not clear how this

                                  6
Center for Constitutional Rights et al. v. United States,
No. 12-0827/AR

would work at all.   Military judges would presumably apply, or

not apply, R.C.M. 806 without appellate review, for it is not

clear which Article III courts, if any, would have jurisdiction

to address collateral R.C.M. 806 appeals arising overseas.

     A system dependent on Article III courts’ review of R.C.M.

806 appeals by either the media or an accused will yield three

other untenable consequences.

     First, the military judge will be compelled to conduct a

trial with the prospect that an unknown collateral court, rather

than the trial judge herself, will determine who has access to

the trial –- as well as when and whether any documents,

including evidence, are disclosed to the parties or to the

public, as part of what it means to have a public trial.    As

Senior Judge Cox ably argues, based on the law and his

experience as a trial judge, a trial judge must have the

authority to control her own courtroom.   The majority’s

interpretation usurps that authority by creating a system

dependent on collateral review.

     Second, in the event of conviction, a collateral court’s

ruling regarding the application of R.C.M. 806 will be subject

to review by military appeals courts and this Court should an

accused allege that a violation of his right to a public trial

impacted his right to a fair trial, the findings in his case, or

the sentence.

                                  7
Center for Constitutional Rights et al. v. United States,
No. 12-0827/AR

     Third, and most likely, collateral courts might exercise

comity and wisely avoid the prospect of interfering in an

ongoing court-martial without knowing all the facts and

circumstances within that court-martial.   This, however, would

leave the public and the accused without a mechanism to

vindicate or test the scope of public access provided by R.C.M.

806 until after the trial because, under the majority’s view,

only then would military appellate courts and this Court have

jurisdiction to review issues of public access.   This defeats

the purpose of the rule.

     This array of absurd consequences is most assuredly not

what Congress intended when it established a uniform system of

military justice.   And it is most assuredly not what the

President intended when he promulgated R.C.M. 806, pursuant to

his Article 36, UCMJ, 10 U.S.C. § 836 (2006), authority.

     [J]urisdiction is conferred ultimately by the Constitution,
     and immediately by statute. However, this principle does
     not mean that our jurisdiction is to be determined by
     teasing out a particular provision of a statute and reading
     it apart from the whole. Since the beginning of
     jurisprudence under the UCMJ, we have read the statutes
     governing our jurisdiction as an integrated whole, with the
     purpose of carrying out the intent of Congress in enacting
     them.

United States v. Lopez de Victoria, 66 M.J. 67, 69 (C.A.A.F.

2008).   That is, until today.   As a result, I respectfully

dissent as well as join Senior Judge Cox’s analysis regarding

the role of the military judge.

                                  8
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

     COX, Senior Judge, with whom BAKER, Chief Judge, joins

(dissenting):

      I agree with the well-reasoned opinion of Chief Judge

Baker.   I write separately because I believe without reservation

that a military judge has the jurisdiction, indeed the

responsibility, to insure that a military court-martial is

conducted so that the military accused and the public enjoy the

same rights to a fair and public hearing as is envisioned in the

Bill of Rights and embodied in the Rules for Courts-Martial

(R.C.M.). I also believe without reservation that the United

States Court of Appeals for the Armed Forces has the

jurisdiction, indeed the responsibility, to insure that military

judges faithfully perform their duties in accordance with law. 1

     In denying standing to Appellants the majority incorrectly

distinguishes this case from the legion of cases giving standing

to the media in cases such as this one.   Globe Newspaper Co. v.

Superior Court, 457 U.S. 596, 603-05 (1982); ABC, Inc. v.

Powell, 47 M.J. 363, 365 (C.A.A.F. 1997) (“[W]hen an accused is

entitled to a public hearing, the press enjoys the same right

and has standing to complain if access is denied.”); see also


1
  This case would have been an appropriate matter for the Judge
Advocates General to have filed an amicus brief. It is bizarre
that the services would advocate that an Article III court
review the conduct of a military judge in the midst of a court-
martial. It would be interesting to learn if that were indeed
their view.
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

Washington Post v. Robinson, 935 F.2d 282, 292 (D.C. Cir. 1991)

(holding that the press and the public should have notice of

closure to have an opportunity to raise a First Amendment right

of access claim).

    Clinton v. Goldsmith, 526 U.S. 529 (1999), while providing

the current state of the law regarding this Court’s ability to

issue writs under the All Writs Act, concerned an administrative

matter that was found by the Supreme Court to be unreviewable by

this Court.   In contrast, this is an ongoing court-martial and,

as so well noted by the opinion of Chief Judge Baker, is clearly

within the four-tiered court system created by Congress by the

Uniform Code of Military Justice (UCMJ).

     This case is about the “office” of military judge.   United

States v. Weiss, 36 M.J. 224 (C.M.A. 1992); John S. Cooke, The

United States Court of Military Appeals, 1975-1977:

Judicializing the Military Justice System, 76 Mil. L. Rev. 43

(1977).   Therefore, in my judgment, this case is about the

authority of a military judge to manage her courtroom and to

supervise the preservation of evidence, create an accurate

record of trial, and control the ebb and flow of spectators and

members of the press into the courtroom.   This case is about

process, not the constitutional rights of Appellants.   The

military judge’s confusion as to what authority she possesses




                                 2
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

over trial documents is evident from the record. 2   In the same

Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session, the

military judge approved the publication of defense motions,

pursuant to an agreement with the Government, on a defense

website, yet then stated she does not possess the authority to

authorize release of court documents in response to Appellants’

original request before the court, a request which included

documents filed with the court such as defense motions.

     To me the fundamental questions are what is the role of the

military judge in the conduct of a court-martial and are her

actions reviewable by the appellate courts.   We are remiss,

therefore, in not taking this opportunity to clarify what

authority the military judge has regarding the control of the

court-martial process, including documents, evidence, and

transcripts produced during the trial.

     “Military judges perform duties prescribed by statute and

the executive order when detailed to a specific court-martial.”

Weiss, 36 M.J. at 228.   When the position of the military judge

was created, the intention was that the military judge would

preside over a court-martial in the same manner as a federal

district judge, with “roughly equivalent powers and functions.”

2
  Interestingly the most scholarly work done on the issues
presented in this case was done by the presiding military judge,
Colonel Denise Lind. See Denise Lind, Media Rights of Access to
Proceedings, Information, and Participants in Military Criminal
Cases, 163 Mil. L. Rev. 1 (2000).

                                 3
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

Sam J. Ervin Jr., 3 The Military Justice Act of 1968, 45 Mil. L.

Rev. 77, 89 (1969); see also United States v. Graf, 35 M.J. 450,

465 (C.M.A. 1992) (“In our view, the Uniform Code of Military

Justice contemplates that a military judge be a real judge as

commonly understood in the American legal tradition”); United

States v. Valigura, 54 M.J. 187, 191 (C.A.A.F. 2000) (finding

that Congress intended courts-martial to resemble a federal

criminal trial, to the extent it was practicable).

     Once a court-martial is convened, the military judge

controls its proceedings, subject to the proscriptions in the

R.C.M.   United States v. Stringer, 5 C.M.A. 122, 140, 17 C.M.R.

122, 140 (1954) (Latimer, J., concurring).    R.C.M. 801 sets

forth the responsibilities of the military judge, including

exercising “reasonable control over the proceedings to promote

the purposes” of the R.C.M. and the Manual for Courts-Martial,

United States.   R.C.M. 801(a)(3).   R.C.M. 806 gives the military

judge the responsibility to make sure the court-martial shall be

open to the public.   The military judge has the authority to

seal portions of the record during trial or prevent parties from

divulging information that is not part the public record during

trial.   R.C.M. 701(g)(2); R.C.M. 806(d).   R.C.M. 1104 gives




3
 Senator Ervin introduced and sponsored the bill that became the
Military Justice Act of 1968.

                                 4
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

responsibility to the military judge to authenticate a record of

trial in certain cases.

     The fact of the matter is there is no rule that states that

the documents, filings, evidence, and record transcripts created

during an ongoing court-martial do not fall under the authority

given to the military judge to exercise control over the court-

martial and ensure public access to the proceedings.   If the

plain language of R.C.M. 801 does not expressly provide the

authority to control the documents created during the court-

martial process, then surely the rule implies that every

military judge has the authority to regulate the release of

those documents.   That rule read in conjunction with R.C.M. 806

is certainly broad enough to allow the military judge to grant

the relief asked for by the Center for Constitutional Rights if

it can be done reasonably and without disruption to the trial

and the processes attendant thereto.

     In my judgment, this Court possesses jurisdiction under the

All Writs Act and under the common law of our Anglo-American

jurisprudential heritage to aid the military judge in the

performance of her duties.   Certainly we are in a better

position to do that than is a federal district judge to solve

the issues presented.   See generally Schlesinger v.

Councilman, 420 U.S. 738, 758 (1975).




                                 5
Center for Constitutional Rights et al. v. United States,
No. 12-8027/AR

     It is the responsibility of a military judge to fashion a

remedy in these cases given the various conditions and

circumstances as one might find at a particular court-martial.

The military judge has the information and knowledge as to what

logistical support a court-martial may have in an individual

circumstance.   Given that courts-martial over history have been

convened in the field, onboard ships at sea, and in small posts,

camps, and stations around the world, a military judge must have

broad latitude to decide on how she should deal with requests

for information such as we have before us. 4   However, we must

make it clear that this Court does have jurisdiction and the

ability to tell a military judge, “You have authority to release

portions of the record of trial, briefs, other non-classified

evidence, etc., under such circumstances and under such

conditions as you find to be fair and reasonable and in

compliance with R.C.M. 806 and the other applicable rules.”

Like other rulings of a military judge, our review would be to

determine whether a military judge abused her discretion in a

particular case.

     Accordingly, I would reverse the Army Court of Criminal

Appeals and remand the case to the military judge to carry out

her responsibilities in this regard.

4
 We do not set any rules for making this happen. Rather, we
only recognize that the military judge has the authority to deal
with the issues presented.

                                 6
