Fighting for access

The charges had been sitting there for months: sexual misconduct, sodomy, aggravated assault. But by the time Lt. Cmdr. John Thomas Matthew Lee was court-martialed in early December, after admitting he’d lied about his HIV-positive status and had sex with an officer, word of the allegations was just getting out.

Military prosecutors had pieced together a stunning case, that the Catholic Navy chaplain had engaged in a string of sexual dalliances and potentially jeopardized the health of untold numbers of service members — including two Naval Academy midshipmen. In the civilian world, reporters would have been crawling over the case. They’d have kept up-to-date through the docket system and shown up regularly in court.

But Lee was tried in the system of military justice, and as such his case almost made it through unnoticed. It was only because a Marine Corps Times editor bumped into an old source who tipped him off to the story that it became public at all.

The article ran two days before Lee’s court-martial. Most of the charges were four months old.

The Marine Corps, like every other military branch, does not require its courts-martial schedules to be released through a public docket. Lee’s case illustrates the alarming potential consequences of denying journalists and the public access to any sort of case-calendar system. But the issue is hardly a new one.

Despite the fact that the highest military courts ruled more than a decade ago that the public has a First Amendment right of access to both military courts-martial and “Article 32” preliminary hearings, military public affairs officers still routinely reject reporters’ requests for court dockets.

Even when dockets are released, the information is often so general and devoid of meaningful detail that the public is still left in the dark. When it comes to public access to military court proceedings, a constitutional key can be essentially useless if one cannot find the gate.

Lee’s attorney, who helped secure the plea deal that would ensure his client will likely spend just 19 months behind bars, praised the Marine Corps “because their primary interest here was to protect people,” according to a newspaper report.

But was it really? While some victims in the case were reportedly notified that Lee is HIV-positive, it remains unclear if Lee actually identified all of the victims preyed upon during his 12-year military career. Other victims who may not have been notified directly by the Marine Corps earlier in the investigation had to wait more than a month from the time the Corps brought Lee’s HIV-related charges to the time the case was first publicized in the newspaper.

During that period, not only were potentially unidentified victims denied treatment for HIV exposure, they may have unknowingly spread the disease.

As an editorial in the Marines Corps Times and Navy Times put it just after Lee’s court-martial: “It might not sound like much, but ask the victims whether they would like that time back. More important, ask anyone who’s had sex with the victims since then.”

The Background

The public right of access to military court proceedings, including Article 32 hearings and courts-martial, is well established. There has long been a right of access to civilian criminal trials, which the U.S. Supreme Court enhanced in 1980 as a First Amendment right through its landmark precedent, Richmond Newspapers, Inc. v. Virginia. Military courts adopted this same right of access through their own decisions, including United States v. Hershey, soon after Richmond Newspapers was decided.

Those same military courts have not reached similar conclusions regarding access to court dockets, in part because there is no guiding Supreme Court precedent on the issue comparable to Richmond Newspapers. Most civilian courts have long relied on standardized and relatively ubiquitous docketing systems that are publicly available, pre-empting the need to sue for docket access. While critics have argued that a secret docketing system undercuts the public right of access to the judiciary, military courts have continued to treat docketing as an administrative issue instead of a constitutional one.

“What it does is turn the right of access into a hollow promise,” said attorney Eugene Fidell, a partner at Feldesman Tucker Leifer Fidell LLP in Washington, D.C. Fidell specializes in military law and is president of the National Institute of Military Justice (NIMJ).

Congress passed the Uniform Code of Military Justice (UCMJ) in 1950 as the primary statutory authority for military criminal law. More specific regulations in military justice procedure are found in the Manual for Courts-Martial, created through a presidential Executive Order in 1984. The Army, Air Force and Coast Guard each have branch-specific regulations that supplement the manual, while the Marine Corps and Navy share a version of similar regulations.

Publicly available docketing within the military judicial system appears to derive from base-specific policies that are often only found in practice rather than in published regulations or guidelines.

Two Marine Corps bases in particular illustrate the disparities that exist within branches. The docketing system at the Corps’ Camp Pendleton in California is relatively extensive, posting a spreadsheet on its base Web site that includes the defendant’s name, rank and unit; the date, time and type of proceeding; and the courtroom where it will be held.

But a public docketing system at the Corps’ Air Station New River in Jacksonville, N.C.? None exists, even though the base has held relatively high-profile general courts-martial, including the 2003 trial of a Gulf War veteran who disobeyed orders and refused an anthrax vaccination.

In 2006, the NIMJ engaged the docketing issue head-on, sending letters to the Judge Advocates General of each of the five military branches requesting support for a centralized online docketing system to be managed by the NIMJ. Responding collectively in a letter, the Army, Air Force, Navy and Marines JAGs rejected the idea, arguing that “teaming” up with a private entity such as the NIMJ would be inappropriate for a government agency, and that such a docketing system would otherwise trigger privacy concerns.

“We recognize that this is not the response that you desired,” the JAGs wrote. “We are committed to increasing the public’s understanding and awareness of the military justice system in a manner consistent with our obligation to protect the privacy and dignity of our service members.”

The Tully Center Survey

Critics of the military justice system point out there is no provision in the UCMJ or Manual for Courts-Martial requiring the nation’s military bases to create a public court docketing system. As a result, the policies and practices for providing information about pending criminal cases at the nation’s military posts are inconsistent and confusing.

Reporters are therefore left with a veritable mishmash of docketing information disclosed on a case-by-case basis, if at all. At many bases, what little information that is online omits any detail that might alert a reporter to an important case.

“It’s hit-or-miss whether or not the cases show up on the Web sites,” Fidell said. Also, “the Court of Appeals for the Armed Forces, they do have a functioning Web site, but it’s down for surprising periods of time.”

The Reporters Committee for Freedom of the Press worked with Syracuse University’s Tully Center for Free Speech at the S.I. Newhouse School of Public Communications to analyze the need for a centralized and standardized military docketing system, available to the public.

In a random survey of just more than one-fourth of U.S. military installations world-wide, the Tully Center asked military base personnel for basic docketing information. Of the 75 bases that responded to the Tully Center call, 45 percent refused to provide any information on scheduled Article 32 hearings. Some 37 percent declined to disclose courts-martial schedules.

(The Tully Center’s methodology, and additional details on the survey, can be found in the sidebar on page 7.)

The Tully survey also found that more than one-third of the bases that agreed to provide docketing information still withheld basic details, such as the defendant’s name or the criminal charge.

Another discrepancy uncovered by the Tully Center survey: several officers inaccurately represented their bases’ policies on disclosure.

For example, a number of Army officers never mentioned the U.S. Army Trial Judiciary docketing site when asked for court schedules. The site began posting a branch-wide docketing system in early September 2007 after at least 10 months of deliberations on the subject, according to email messages obtained by the Reporters Committee through a Freedom of Information Act request.

While the information disclosed within the Army system is rudimentary and lacks virtually any detail related to the charges against the defendant service member, it’s a goldmine for reporters compared to what bases in other service branches offer.

And yet, Army personnel at Redstone Arsenal, Ala., Fort Carson, Colo., Fort Campbell, Ky., Fort Meade, Md., and Fort Jackson, S.C., neglected to mention the docketing site to the Tully Center. In some instances, the survey shows, those contacted at the Army bases either directly rejected the caller’s request or otherwise admitted they didn’t know if the public was entitled to court docketing information.

Some officers also instructed the Tully Center caller to file FOIA requests to obtain court dockets. While military courts are a subset of the Defense Department and are therefore arguably part of a federal agency subject to FOIA, legal experts generally agree that access to military courts and the documents they produce is a constitutional issue as opposed to a FOIA issue.

To the degree that military court docketing information can be accessed through FOIA, it’s typically not a practical solution for reporters on deadline.

“The problem with [FOIA] is that it takes forever,” Fidell said. “It’s totally incompatible with the needs of daily journalism or even monthly journalism.”

Deficiencies

In their day-to-day jobs, military court reporters around the world say they often experience a sense of personal conflict. On the one hand, the institutional challenges that encumber military reporting at nearly every turn test journalistic skill and allow reporters to prove their mettle: the old-school, pavement-pounding stuff. The adversarial element within the military beat heightens the sense of purpose for reporters and beyond that, is a thrill.

On the other hand, these same reporters will acknowledge that the unusual obstacles they face can stymie their work as the public’s eyes and ears. For every scoop ferreted out using a confidential source, there’s often the nagging feeling that 10 more stories that would have been easy to get through the civilian court system got away. In the end, when all the jousting between a military reporter and a base public affairs officer (PAO) is done, the public remains underserved.

In deconstructing their frustrations with the military justice system, most reporters interviewed for this report said they felt powerless, that reporters are “at the mercy” of base PAOs and commanders. In contrast to the civilian judicial system, where court dockets exhibit a relatively detailed format and are routinely available weeks in advance, the military system typically puts the burden on the reporters to find upcoming cases.

“If I could just walk into the local JAG office each week and look at the docket for myself, life would be a lot simpler,” said Stars and Stripes reporter John Vandiver. “It works for the justice system in the civilian universe. I don’t see why it should be any different in the military.” 

Covering the U.S. Army Garrison in Baumholder, Germany, Vandiver recently wrote stories on the case of Army Capt. Robert Przybylski, who was charged in November 2007 with desertion. Przybylski’s subsequent Article 32 hearing was inexplicably put on hold for months. In one story, Vandiver quoted an official’s curt accounting for the delay: “The Article 32, it’s still pending. It takes as long as it takes.”

Sourcing Above and Beyond

Public awareness of the military judicial system is therefore greatly dependent on backchannel sources. Sometimes these sources have an ulterior motive for bringing publicity to a particular case. Sometimes a reporter stumbles upon a crucial tip. Either way, the story often comes out with little or no help from base officials.

At least, not help they intended to give. One recent military crime story came to light after Tim McGlone, a reporter for The (Norfolk) Virginian-Pilot, introduced himself to a uniformed Navy attorney shortly after starting the military beat in 2006. In a conversation McGlone believes the attorney later regretted, the attorney let on that there were a couple of pending espionage cases the newspaper hadn’t heard about.

Following up on that general tip, McGlone said he hounded Navy officials at Norfolk Naval Station and elsewhere for about three months, desperately trying to learn more about any pending espionage cases. Eventually, after months of denying any such cases existed, Norfolk officials released the name, rank and charges of the officer involved.

After McGlone and fellow Pilot reporter Kate Wiltrout wrote stories critical of the base’s disclosure policy, the Navy released more information about Petty Officer 3rd Class Ariel J. Weinmann and the espionage charges he faced. The reporters ultimately learned Weinmann had been held in custody for four months before his Article 32 hearing.

“The bottom line is, they never would’ve released this, and we never would’ve found out about it if it wasn’t for the tip — or at least not before it was all over,” said McGlone, who is protecting the identity of his original military source so the attorney will not be reprimanded.

Weinmann accepted a plea bargain in December 2006, under which he was dishonorably discharged and sentenced to 12 years in prison.

Similarly, the Navy chaplain case was one of great public interest that only came out after C. Mark Brinkley — managing editor of the Springfield, Va.-based Marine Corps Times — ran into an old, reliable source who said, “Hey, I think you guys need to know about this,” according to Brinkley.

Lee, the chaplain, pleaded guilty to sexual misconduct, aggravated assault and other charges in his Dec. 6 court-martial. He admitted to having sex with sailors of inferior rank, knowing he was HIV-positive. The Marine Corps only acknowledged the charges on Dec. 5 — seemingly forced to do so after the newspaper followed up on Brinkley’s tip.

So what to do?

Rather than amend the UCMJ, military law experts interviewed for this article said the most effective way to implement a better multi-branch, standardized docket system would be for the Department of Defense to enact an administrative rule creating one.

A public docket-production effort would not be labor intensive, because military judges and their staff already produce dockets that are regularly distributed to attorneys involved in court proceedings, said Neal Puckett, a civilian defense attorney who once served as a military trial judge in Okinawa, Japan.

“It’s a couple of keystrokes nowadays,” Puckett said. “In other words, transmitting what they already do every week.”

A pervasive complaint by military courts reporters is that the list of charges filed in current docketing systems typically names only the general UCMJ “article” provision. Because some provisions, such as Article 134, include a wide variety of offenses ranging from voluntary manslaughter to abusing a public animal — such as a horse —journalists and members of the public often can’t glean much about the alleged offense, Puckett said.

As a remedy, Fidell suggested that entire charging sheets be attached to docketed case listings, with the parts that arouse privacy concerns redacted.

The most formidable impediment to change may be a military culture that is resistant to criticism outside the chain-of-command.

“It may just be that [openness] doesn’t come naturally” to the military, Fidell said. “Maybe this is all an artifact of the fact that we have a command center system that is highly decentralized with a multitude of convening authorities, each of whom basically has its own jurisdiction.”

Puckett noted that the military court system was initiated as an in-house disciplinary process, not a “justice” system operating to ensure the overall public welfare. With no regulations in place to force disclosure, he said, military officials have little incentive to shine a light on criminal offenses that are potentially embarrassing.

But those officials need to update their thinking, Fidell said. They should shore up public confidence in a justice system that has been viewed historically as “second-rate,” prone to abuses stemming, in part, from secret World War II military commissions.

“This is not something that any military service is going to want to advertise,” Fidell said. “You don’t hire the Goodyear Blimp to talk about how many people you’ve court-martialed. But [transparency] is part of running an armed force in a democratic society committed to the rule of law.”