Survey shows tendency to withhold dockets

By Barbara Fought and Colleen Keltz, Tully Center        

 At one-third of the military installations surveyed by researchers for a comprehensive study on public access to military justice information, military base personnel just said “No.” Schedules of military courts-martial are not public.

Surveyors had slightly better luck at another 20 percent of the military installations, finding that some details of their military justice cases were available. But even then a civilian typically couldn’t get more than the date and time of the proceeding — never mind the name of the service member or the general charge.

Taken together, that’s more than half of the military installations surveyed by the Tully Center for Free Speech at Syracuse University in a study on military justice and transparency. Meaning a journalist looking to piece together what’s scheduled to happen at a court-martial on many U.S. military installations could very likely be out of luck.

For preliminary hearings, known as Article 32 hearings, the results were worse. Nearly half the installations reported they could not give any information on military justice cases. Another quarter gave partial information.

These results of a phone survey conducted over the last year by the Tully Center, at the S.I Newhouse School of Public Communications, show that many military personnel accused of crimes are denied the basic constitutional right of a public trial — even though they have sworn to protect and defend that same Constitution. 

Historically, civilian trials have been open — a crucial factor for public trust in the justice system.

In light of the waves of troop deployments to Iraq and Afghanistan in the last seven years, and questions about whether the Uniform Code of Military Justice applies to military contractors in a combat zone, secrecy in the military justice system is increasingly worrisome. The Tully Center survey found that even if reporters find out about a court-martial, actually getting to attend in some places may be difficult.

The Tully Center undertook this research in conjunction with The Reporters Committee for Freedom of the Press after hearing anecdotal reports that journalists and citizens were not able to access dates for military hearings. Indeed, some reported they could not attend proceedings even when they did find out about them.

The survey results undercut what Judge Advocates General from the Army, Air Force, Marines and Navy wrote in a letter to the National Institute for Military Justice in November 2006, that an “established process for disseminating information, including court-martial scheduling information, to the public . . . currently exists.”

The survey found at dozens of military installations, that’s not the case.

Access Denied

Reasons given by military officials for withholding basic charging information at the military installations contacted for the study ranged from outrageous to almost laughable.

A marine at Camp Foster in Okinawa, Japan, said information about a court-martial probably couldn’t be given out to the public for security reasons. He said public knowledge of a court-martial could create a “potential target for something.”

In the legal office at a Navy facility in Hawaii, an official said he could not give out information on a court proceeding over the phone. Doing so, he said, might violate the Privacy Act (which protects private information the government maintains about citizens.) He suggested contacting the U.S. Navy Office of Information at the Pentagon.

Other reasons military officials cited for withholding information on proceedings included:

· the respondent did not have that information and did not know where to find it.

· the commanding officer or judge controlled the information and gave it out on a case-by-case basis.

· a formal Freedom of Information Act (FOIA) request had to be filed first.

The survey showed that of the fivemilitary branches, the Navy most frequently limited access to information on courts-martial — more than half of the Navy survey respondents refused any public access to case docket information. This compares to 22 percent for the Coast Guard, 25 percent for the Army, 32 percent for the Air Force and 43 percent for the Marines.

While a complete court schedule was available to the public less than 40 percent of the time, some military installations at least offered bits of information on upcoming court proceedings.

For example, a major in the legal department at Anderson Air Force Base in Guam said while the base didn’t publish courts-martial information for the broader public, the details did appear in the base newspaper. He said he would readily give that information over the phone to a civilian.

A staff judge advocate at the Army’s Fort Jackson, S.C., post said while they kept no formal schedule at the office for release to the public or the press, they would give out selected information over the phone. But without a policy or protocol, it is difficult to judge whether complete or consistent information is released.

Getting on Base

Even when civilians find out about military court proceedings, they may still encounter hurdles getting into the courtroom. Security is tight; most installations require civilians to provide a name and driver’s license, and perhaps even car registration papers, to get inside.

Sixteen percent of the installations surveyed said they required even more of civilians, including a reason for attending the court event, or a military sponsor. A major at Sheppard Air Force Base in Wichita Falls, Tex., said it would be hard to get a military member to sponsor a civilian, as the sponsor would be responsible for that person during his or her entire visit.

Confusion

About one in 10 military installation respondents suggested the researchers file a FOIA request for the court-related information. FOIA does not apply to the civilian courts system and it is unclear what its applicability is to the military courts though it would not seem to have a place as case law and court rules mandate openness.

In many cases those answering the phone appeared uncertain about which cases require a FOIA request, or how FOIA might apply. One employee at the Altus Air Force Base in Oklahoma said the researcher needed to file a FOIA request for the court docket. He said he could give the information it contained over the phone, but not the docket itself.

Online Dockets

During its research and surveying, the Tully Center found or was referred to seven docketing calendars online. 

An officer in the Judge Advocate office at Miesau Army Depot in Miesau, Germany, walked the caller through the Army’s comprehensive Web site. Naval offices in Virginia Beach and Saratoga Springs, N.Y., directed researchers to the publicly accessible online docket of the Navy Region Mid-Atlantic Public Affairs Office in Norfolk, Va. The Naval Air Station in Fallon, Nev., referred researchers to the regional legal services office in San Diego where researchers were told that court proceedings are posted on Camp Pendleton’s Web site.

Additionally, one officer at Marine Corps Base Camp Lejeune, N.C., was particularly helpful in telling the caller about its Web site. “We post to the Web site just so that it is available to the public,” the officer said.

However, unsolicited tips to the online sites were the exception; most officials failed to refer to online dockets or schedules that are readily available to the public.