ELLEN LIPTON HOLLANDER, District Judge.
This case arises from the general court-martial of Private First Class Bradley E. Manning, and involves issues with respect to public access to the court-martial proceedings. Pretrial proceedings in the court-martial began in March 2012, pursuant to Article 39(a) of the Uniform Code of Military Justice ("UCMJ"), codified in 10 U.S.C. ch. 47. The bench trial began on June 3, 2013, at Fort George G. Meade, within the geographic territory of the District of Maryland, and is expected to last about twelve weeks. Plaintiffs, who are several journalists, advocacy organizations, and media enterprises,  have filed suit in this Court under the First Amendment to the Constitution of the United States, seeking to obtain greater public access to the court-martial proceedings. This Memorandum Opinion resolves only the Motion for Preliminary Injunction (ECF 2) that plaintiffs filed with their complaint.
During PFC Bradley Manning's service as an Intelligence Analyst in the United States Army, he allegedly transmitted to the Wikileaks organization, without authorization, numerous sensitive and/or classified documents, including but not limited to databases of military field reports of significant activities in Iraq and Afghanistan, diplomatic cables of the United States, and video depicting certain incidents occurring in the theater of war. Wikileaks then made the documents available to the public.
On March 1, 2011, the United States Army charged Manning with twenty-two violations of the UCMJ, including that he provided "intelligence to... the enemy, " in violation of Article 104 of the UCMJ, and that he provided "information relating to the national defense" to a "person not entitled to receive it, " in violation of Article 134 of the UCMJ and 18 U.S.C. § 793(e). See ECF 2-2 at A80-88 (statement of charges). On February 3, 2012, Major General Michael S. Linnington, the Commanding General of the Military District of Washington and the convening authority, referred the charges to a general court-martial. Colonel Denise Lind was assigned as the presiding judge.
PFC Manning's conduct and the government's prosecution of him have generated intense and widespread public interest, both nationally and around the world. Since the inception of the pretrial proceedings, the court-martial of PFC Manning has been open to the public, except for sessions that were closed because they involved discussion of classified information. However, prior to the instant litigation the docket of written documents filed in the case was not made publicly available.
Shortly after the pretrial proceedings began, the Center for Constitutional Rights ("CCR"), on behalf of Wikileaks ITC, Inc. ("Wikileaks") and its founder and editor-in-chief, Julian Assange, wrote two letters to Judge Lind and to PFC Manning's defense counsel, seeking access to documents filed in the court-martial, transcripts of court hearings, and off-the-record conferences conducted under Rule 802 of the Rules for Courts-Martial ("R.C.M."). On April 24, 2012, in open court, Judge Lind received CCR's letters into the record, under a single docket entry, as Appellate Exhibit 66. She interpreted the second of the two letters as a motion by CCR to intervene for purposes of seeking the relief requested, and denied the request.
Judge Lind stated:
While the Court acknowledges the existence of a common law right of access to public records, including judicial documents, that right is not absolute; Nixon versus Warner Communications Inc., 435 U.S. 589 at 599, (1978) .
The Court also notes the existence of a Congressionally devised system of access to government documents, the Freedom of Information Act or FOIA.
When Congress has created an administrative procedure for processing and releasing to the public on terms meeting with Congressional approval the common-law right of access may be satisfied under the terms of that Congressionally devised system of access. Id. at 603 to 606. Nor does the 1st Amendment guarantee of freedom of the press or the 6th Amendment guarantee of a public trial mandate access to or copying by non-parties of exhibits admitted during a court-martial. Constitutional interpretation aside, the Court notes that under the military justice system, the Court does not call a court-martial into existence, nor is the Court the custodian of exhibits in the case; whether appellate, prosecution, or defense exhibits, which become part of a record of trial. See for example, Rules for Courts-Martial 503(a) and (c); 601(a); 808 and 1103(b)(1)(a) and (d)(5).
Neither is the Court the release authority for such documents if requested under FOIA. Requests for access to exhibits in this case should be directed to the appropriate records custodian.
Thereafter, in May 2012, pursuant to the All Writs Act, 28 U.S.C. § 1651(a), the plaintiffs in this case filed in the Army Court of Criminal Appeals ("ACCA") a "Petition for Extraordinary Relief in the Nature of a Writ of Prohibition and Mandamus, " challenging Judge Lind's ruling. The ACCA denied the petition, without an opinion, on June 21, 2012. Plaintiffs then appealed the ACCA's decision to the United States Court of Appeals for the Armed Forces ("CAAF"), which is the highest appellate court in the military justice system. The CAAF heard oral argument on October 10, 2012, and issued its opinion on April 16, 2013. See Center for Constitutional Rights v. United States, 72 M.J. 126 (C.A.A.F. 2013).
In a 3-2 decision, the CAAF ruled that it lacked jurisdiction under the All Writs Act to consider the merits of plaintiffs' claims. The CAAF noted that "the accused [ i.e., Manning] has steadfastly refused to join in the litigation, or, despite the Court's invitation, to file a brief on the questions presented." Id. at 129. In the view of the CAAF majority, plaintiffs were asking the CAAF "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." Id. According to the majority, such issues were outside of the CAAF's statutory jurisdiction, which is limited to review of "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." Id. at 129 (quoting UCMJ, art. 67(c)). The CAAF majority also observed that the government "suggest[ed] that review by an Article III court is the appropriate forum for litigation of any TJAG [the Judge Advocate General] decision respecting the release of documents, " arguing "that the authority to release the documents is committed by statute and regulation to the Judge Advocate General (TJAG), ' not the military judge" or the military appellate courts. Id. at 128 (quoting government).
Pursuant to the statute governing Supreme Court review of the CAAF's decisions, 28 U.S.C. § 1259, further review by the Supreme Court of the CAAF's decision, by way of certiorari, was not available. Thus, the two dissenters opined that "collateral appeal to Article III courts" was the only remaining available avenue for plaintiffs to press their claims. Id. at 132 (Baker, C.J., dissenting).
In the meantime, on February 28, 2013, PFC Manning pleaded guilty to ten of the twenty-two charges against him. Twelve counts remained to be tried. Manning also elected to be tried by way of a bench trial, with Judge Lind as the sole finder of fact, rather than to avail himself of his right to trial by a jury of other servicemembers.
On May 22, 2013, just over a month after the CAAF issued its ruling, plaintiffs filed suit in this Court against Colonel Denise Lind; Maj. General Michael Linnington; Lieutenant General Dana Chipman, the Army Judge Advocate General; and Secretary of Defense Charles T. Hagel. All of the defendants were sued in their official capacities. Plaintiffs' complaint contains three counts: (1) a request for injunctive relief under the First Amendment; (2) a request for a writ of mandamus under the First Amendment; and (3) a request for a writ of mandamus under the common law and R.C.M. 806, which provides that courts-martial generally are to be "open to the public." They seek a declaratory judgment, the issuance of various directives and/or writs of mandamus to the Manning court-martial, and an award of attorneys' fees and costs.
As noted, plaintiffs also filed, along with their complaint, a motion to obtain preliminary injunctive relief. The Motion for Preliminary Injunction (ECF 2) was fully briefed by the parties, and oral argument was presented to the Court on June 17, 2013.
Additional facts are included in the Discussion.
Notwithstanding the intense public interest in PFC Manning's court-martial, and the corresponding questions concerning national security that pervade PFC Manning's alleged offenses, the merits of the government's prosecution of PFC Manning have limited relevance to the issues before me. I must first determine whether this Court possesses jurisdiction to resolve the Motion and, if so, I must discern and apply the law with respect to public access to an ongoing general court-martial, within the parameters established by binding Supreme Court and Fourth Circuit precedent and other persuasive authority, and in the context of a request for preliminary injunctive relief.
Plaintiffs assert that this Court has subject matter jurisdiction under the general grant of federal question jurisdiction, 28 U.S.C. § 1331, and under the mandamus provisions of 28 U.S.C. § 1361.
As to federal question jurisdiction, plaintiffs invoke the principle that a federal court has jurisdiction to issue preliminary and permanent injunctive relief against federal officials in their official capacities to enjoin a violation of the First Amendment. See, e.g., United States v. Minor, 228 F.3d 352, 356-57 (4th Cir. 2000) ("When constitutional interests are... clearly implicated, federal courts have broad discretion to fashion a remedy in equity.") (citing, inter alia, Bell v. Hood, 327 U.S. 678, 684 (1946) ("[I]t is established practice... to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution.")); see also R.I. Dept. of Envt'l Mgmt. v. United States, 304 F.3d 31, 41 (1st Cir. 2002) ("[O]ur courts have long recognized that federal officers may be sued in their official capacity for prospective injunctive relief to prevent ongoing or future infringements of federal rights. Such actions are based on the grant of general federal-question jurisdiction under 28 U.S.C. § 1331 and the inherent equity powers of the federal courts.") (internal citations omitted).
With respect to mandamus, 28 U.S.C. § 1361 grants the federal district courts "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." However, mandamus is a "drastic'" remedy, which is "reserved for extraordinary situations'" in which the petitioner "has no other adequate means to attain the relief he desires.'" United States ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 502, 511 (4th Cir. 1999) (quoting Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 402-03 (1976)). A party seeking a writ of mandamus must demonstrate that
(1) he has a clear and indisputable right to the relief sought; (2) the responding party has a clear duty to do the specific act requested; (3) the act requested is an official act or duty; (4) there are no other adequate means to attain the relief he desires; and (5) the issuance of the writ will effect right and justice in the circumstances.
Rahman, 198 F.3d at 511.
At least in the context of its own review of the decisions of federal district courts, the Fourth Circuit has stated that "[m]andamus, not appeal, is the preferred method of review for orders restricting [public access] to criminal proceedings.'" In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283, 288 (4th Cir. 2013) (quoting Balt. Sun Co. v. Goetz, 886 F.2d 60, 63 (4th Cir. 1989)) (internal citation and some internal quotation marks omitted). However, the Fourth Circuit does not stand on form in applying this preference; rather, the appellate court treats petitions challenging restrictions on public access as petitions for mandamus, regardless of their label, so long as "the party seeking review has standing and has substantially complied with the requirements... concerning mandamus." In re Washington Post Co., 807 F.2d 383, 388 (4th Cir. 1986); accord In re Application, 707 F.3d at 288-89 (citing In re Washington Post ). Moreover, the Fourth Circuit has stated that district courts have the authority to issue preliminary injunctive relief in mandamus actions arising under § 1361. See Starnes v. Schweiker, 715 F.2d 134, 142 (4th Cir. 1983) ("Even if jurisdiction rests solely on § 1361, we think that the grant of interim injunctive relief was proper. Mandamus jurisdiction under § 1361 permits flexible remedies, including injunctive or declaratory relief."), cert. granted and vac'd on other grounds sub nom. Heckler v. Starnes, 467 U.S. 1223 (1984).
Defendants do not appear to contest that this Court possesses subject matter jurisdiction. Instead, they argue that this Court should "abstain[ ] from the exercise [of] its equitable jurisdiction, " Opposition at 23, in recognition of the "deference a federal court generally owes a coordinate military court." Id. at 17. In support of their position, defendants rely most heavily on the Supreme Court's decision in Schlesinger v. Councilman, 420 U.S. 738 (1975).
In Councilman, a servicemember who was being prosecuted by court-martial obtained an order from a federal district court enjoining the ongoing court-martial proceedings against the servicemember, on the ground that the drug related offenses with which he was charged "were not service connected' and therefore not within the military court-martial jurisdiction." Id. at 740. The Supreme Court held that the district court "had subject-matter jurisdiction" to issue such an injunction, id. at 753, but that it should have refrained from intervening. Id. at 758 ("We hold that when a serviceman charged with crimes by military authorities can show not harm other than that attendant to resolution of his cases in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise."). The Councilman Court articulated a doctrine, now known as " Councilman abstention, " which holds that "principles of comity, respect for the expertise of military judges, and judicial economy weigh against federal court intervention in pending court-martial proceedings and in favor of requiring exhaustion of all available remedies within the military justice system before a federal court's collateral review." Hennis v. Hemlick, 666 F.3d 270, 271 (4th Cir.), cert. denied, ___ U.S. ___ , 132 S.Ct. 2419 (2012).
Although Councilman is not on all fours with this case, its reasoning is instructive. The Councilman Court began its discussion of the merits by emphasizing the independence of the military justice system from the supervision of the Article III judiciary, 410 U.S. at 746:
This Court repeatedly has recognized that, of necessity, "(m)ilitary law... is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment." Congress... [has] never deemed it appropriate to confer on this Court "appellate jurisdiction to supervise the administration of criminal justice in the military." Nor has Congress conferred on any Art. III court jurisdiction directly to review court-martial determinations. The valid, final judgments of military courts, like those of any court of competent jurisdiction not subject to direct review for errors of fact or law, have res judicata effect and preclude further litigation of the merits. This Court therefore has adhered uniformly to "the general rule that the acts of a court martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by writ of prohibition or otherwise." (Citations and footnote omitted.)
The Supreme Court gleaned from this discussion that "the balance of factors governing exercise of equitable jurisdiction by federal courts normally weighs against intervention, by injunction or otherwise, in pending court-martial proceedings." Id. at 740. It pointed out, however, that this general principle of military judicial independence is subject to a "qualification-that the court-martial's acts be within the scope of its jurisdiction and duty.'" Id. (citation omitted in original). The Court determined that collateral review for voidness of final judgments of courts-martial came within the subject-matter jurisdiction of the district courts. See id. at 747-53. However, the Court remarked: "This is not to say... that for every [serious] consequence [of a court-martial conviction] there is a remedy in Art. III courts." Id. at 752.
The Court articulated a test for when "whether a court-martial judgment properly may be deemed void." Id. at 753. It instructed district courts to consider "the nature of the alleged defect, and the gravity of the harm from which relief is sought, " and to assess both of those factors "in light of the deference that should be accorded the judgments of the carefully designed military justice system established by Congress." Id. Applying this test to the scenario of a servicemember seeking an injunction against his ongoing court-martial, the Court ruled that, although the claim fell "within the limited jurisdiction conferred on the federal ...