Access to military justice: the key cases

Though the First Amendment grants a presumptive right of access to courts-martial and pretrial proceedings, reporters often have been frustrated by efforts to keep them out — usually out of a presiding judge's interest in protecting privacy interests or expediting the proceedings.

In June 1997, the U.S. Court of Appeals for the Armed Forces in Washington D.C., made it clear that Article 32 preliminary hearings must be open to the public unless there is a specific and substantial showing that the proceeding needs to be closed. In ABC Inc. v. Powell, the highest military court held that a preliminary hearing in the sexual misconduct case against Sgt. Maj. Gene McKinney must be open to the public, unless the Army could show a specific and substantial need for secrecy. The Army had argued that to ensure McKinney's rights to a fair trial and protect alleged victims' privacy, the preliminary hearing must be closed. The hearing was to determine whether there was sufficient evidence to support charges of adultery and indecent assault stemming from the allegations of four female service members.

The ruling came after Army officials at Fort Myer in Arlington, Va., ordered the Article 32 hearing closed. Officials told reporters that access is left to the local commander's discretion and are often closed, especially with cases attracting media attention. The Washington Post quoted Army Chief of Staff Dennis Reimer as saying that Article 32 hearings "are never open," and the Army tried to justify closure by arguing that it would minimize "distraction" from the issues and ensure McKinney's fair trial rights.

The order was challenged by five television networks and the Post. McKinney, his main accuser Brenda Hoster, and two military justice groups also argued for open proceedings. The court overruled the closure order and made clear that the presumption is that such hearings must be open unless there is a specific showing of need for closure.

Other key military access rulings:

In United States v. Grunden, the U.S. Court of Military Appeals in 1977 applied the Sixth Amendment right to a public trial to courts-martial in a case involving espionage-related charges against an Air Force airman. The court said "as a general rule, the public shall be permitted to attend open sessions of courts-martial." Spectators can be excluded from portions "only to prevent the disclosure of classified information." The court made it clear that asserting "security" or "military necessity" does not automatically overcome the right to an open trial.

In United States v. Hershey, the U.S. Court of Military Appeals reaffirmed in 1985 that the right of public access to criminal trials extends to courts-martial, but found that fair trial rights were not denied by clearing the courtroom while a child testified about her father. Although the court said a stringent test must be applied before closing a proceeding, it was appropriate to consider factors such as the age and psychological maturity of the witness, the nature of the crime, the desires of the victim, and the interests of parents and relatives.

In United States v. Travers, the U.S. Court of Military Appeals in 1987 upheld a denial of closure of a pre-sentencing hearing, which the defendant requested to protect him from the embarrassment he would feel after his actions as an informant were revealed. The court said that "the presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Such a determination must be articulated on the record based on specific findings.

Citations:

ABC Inc. v. Powell, 47 M.J. 363 (1997)

United States v. Travers, 25 M.J. 61 (1987)

United States v. Hershey, 20 M.J. 433 (C.A.M. 1985)

United States v. Grunden, 2 M.J. 116 (1977)