Military justice access

With the federal government's use of military courts to try more terrorism suspects in recent years, the issue of public access to the military justice system remains a key issue. Enforcing the public's right to monitor and report on the proceedings can be a challenge in practice.

The military justice system operates separately from the civilian court system. It has its own laws, procedures, and rules. (In fact, many of the common terms used in military justice proceedings may be unfamiliar.) But the public's qualified First Amendment right of access, which provides the public with a presumptive right to attend and monitor civilian criminal proceedings, also protects the public's presumptive right to attend similar military justice proceedings.

Despite this right of access, there can be many hurdles to reporting on military court proceedings. Obtaining public information about the proceedings can be a challenge on its own because the secrecy that surrounds these proceedings often extends even to the court's docket, meaning that journalists covering a particular hearing are often unaware of what is being discussed therein. Another obstacle is obtaining access to the courtrooms themselves, which may be located on military bases with restricted access. And despite the public's presumptive right of access to proceedings, courts may be reluctant to second-guess restrictions on access that are instituted on the basis of national security concerns.

Reporters may also face restrictions on publishing information about military justice proceedings. In 2010, the Pentagon banned four reporters from further proceedings at Guantanamo Bay Naval Base after concluding that the reporters had published classified information from a hearing. The Pentagon subsequently lifted the expulsion orders after protests from the news media, and ultimately agreed to loosen the restrictions on reporting at the base.

A coalition of news organizations and those who advocate on their behalf successfully worked with the U.S. Department of Defense in Fall 2011 as the agency implemented reforms in its regulations governing military commission proceedings at Guantanamo Bay. The new guidelines attempt to address the complaints of journalists covering the offshore trials that the long classified review procedures and otherwise heightened secrecy are significant obstacles to their effective reporting on the proceedings.

In an effort to address these calls for greater and easier access to important information about the military commission's cases against accused terrorists, the Defense Department created a new Web site that provides reporters contemporaneous access to court documents, established a viewing location at Fort Meade that allows the press and public to watch a closed-circuit broadcast of the hearing and adopted the updated media access reforms governing the commissions.

Specifically, the regulations call for: posting online filings and decisions that do not require classification security review within one business day, posting filings that do require a security review within 15 business days (except in “exceptional circumstances”) and posting unofficial transcripts of the proceedings “as soon as practicable after the conclusion of a hearing each day”; authorizing military judges overseeing court-martials to rule on any dispute raised by the parties or the public regarding filings, rulings, orders or transcripts over whether the document was appropriately designated as “protected”; and allowing the prosecution to take an interlocutory, or immediate, appeal on any order or ruling of a military judge that relates to the closure of proceedings to the public or the protection of classified or protected information.

Journalists covering the offshore commissions have reported that the situation has improved since the media access reforms were implemented, although there is often still a delay in getting access to documents filed in connection with the proceedings. In February 2012, journalists covering the court-martial of U.S. Army Pfc. Bradley Manning -- who was accused of leaking to the global transparency organization WikiLeaks the largest amount of classified information in U.S. history -- reported that they were unable to view documents filed in the proceeding before the public hearings in which many of those matters were discussed. As such, the public's right of access to the offshore trials of accused terrorists is arguably stronger than its right of access to stateside military trials, according to a similar coalition of news organizations and advocacy groups as that which successfully appealed to the Defense Department for reforms at Guantanamo Bay. This coalition asked the federal government to implement similar reforms in its regulations governing court-martial proceedings generally and that of Manning specifically as it had in the revised regulations governing trials by military commission.