Covering courts-martial: Finding the docket

Reporters' First Amendment right of access to military judicial proceedings encompasses the right to know what cases and proceedings are pending and when they are to be convened, said attorney Matthew Freedus, a partner at Feldesman, Tucker Leifer Fidell LLP in Washington, D.C., and a former Navy judge advocate.

But unlike the federal system where a docket of upcoming judicial matters is spelled out and usually easy to locate, dockets can be elusive in the military justice system. Generally, dockets are not posted in a particular public location as in civilian courthouses. The availability of a docket for an individual base depends on the commander's policies. Some, but not most, may even be available online.

To get a copy of a docket or learn about upcoming proceedings, reporters should request the docket from the public affairs officer or the installations' law center.

Reporters covering the Navy and Marine Corps should be aware that each judicial circuit within the Navy and Marine Corps publishes a docket that is distributed on a regular basis to the prosecution and defense. According to a Navy Judge Advocate General spokesperson, "It is usually updated weekly and can be obtained by a reporter contacting the region PAO."

James W. Crawley, a military reporter for Media General News Service's Washington bureau who also serves as vice president of the journalists' association Military Reporters and Editors, recommends that reporters tell the base public affairs office that they want to know about every case that gets filed, and recommends establishing a relationship with the office. Reporters may have an easier time getting information after they have been covering a particular place for a period of time.

Getting the public affairs office to release docket information, however, can be an uphill battle, Crawley adds. "If the public affairs office is unable to tell you when proceedings are to be held, you could call everyday, tell the office you want to go see a court-martial today and send someone on a daily basis until they realize that they need to provide you with the docket," Crawley suggests.

Tom Roeder of The (Colorado Springs) Gazette concurs. If you want access, "You have to ask for it. You have to be aggressive in pursuing access to military courts or you won't get it."

Getting on base

Courts-martial are "public" proceedings — if reporters can get to them. Of course, hearings held in battlefield conditions or aboard ships raise much more difficult access issues.

Once journalists identify a hearing to cover, they should alert the base or installation public affairs officer that they want access to the base for the hearing. Since military bases are not open to the public, the public affairs officer will likely ask for a reporter's Social Security number, date of birth, the type of vehicle he or she intends to drive to the base, and its tag number and state. The public affairs office can prepare temporary vehicle passes in advance in most cases and provide a windshield placard upon arrival. Once on base, be prepared to show proper identification.

Although the public has a right of access to military court proceedings, bases and military installations typically are not open to the public, so reporters should expect to be escorted while on base. Recording devices and cameras can be brought to the base but the rules for court-martial ban them from the courtroom.

The right of access

Though the military justice system works differently than the civilian system, the news media has the same qualified First Amendment right of access to military proceedings as they do to attend civilian criminal court proceedings. Under narrow circumstances, entire Article 32 hearings or courts-martial, or just parts of those proceedings, may be closed — but the closure must be supported by either a particular evidentiary rule or a written determination by the presiding authority that a particular testimonial privilege outweighs the public's right of access and that the closure is narrowly tailored to protect the privacy interests at stake.

Courts uphold closure where military law requires it. For instance, Military Rule of Evidence 513, dealing with the psychotherapist-patient privilege, authorizes a military judge to conduct a closed hearing when litigating the issue of whether patient records may be released to the defense. And courts generally uphold the closure of military proceedings where disclosure of information will likely harm national security or where the case concerns a sexual assault. Even in these types of cases a determination on the record must be made based on the specific facts of the case.

The Military Court of Appeals has never affirmed the blanket closure of an entire trial. And the appeals court has repeatedly ruled that reporters may not be shut out when someone is merely concerned about embarrassment or generalized "security" interests, or when claims of "military necessity" are made without supporting facts.

Reporters have successfully overturned decisions that improperly denied them access. Sandra Jontz, a reporter for Stars and Stripes in Naples, Italy, was denied access to an Article 32 hearing. (Stars and Stripes is a military-funded daily newspaper given independent status as a "First Amendment newspaper.")

The pretrial proceeding was held to investigate allegations of indecent acts with a minor, sexual harassment, and fraternization against a chief petty officer with the Naval Computer and Telecommunications Station in Naples. Before the hearing started, Jontz was told it would be closed. Jontz said she wanted the opportunity to object on the record before the investigating officer and would attend the hearing to do so. Her request, however, was denied.

"The parties wanted to keep the nature of the offense [sexual misconduct with a minor by an officer] quiet," Max Lederer explained. Lederer is the chief operating officer and general counsel for Stars and Stripes, and is a former Army judge advocate. "The officer was embarrassed, the victim's family did not want the incident to become common knowledge, and the command was embarrassed by the incident."

Embarrassment, however, is not a sufficient basis for closing a courtroom. The newspaper "filed a writ with the Navy-Marine Corps Court of Criminal Appeals. Within days of when we filed and publishing a story regarding the process the Navy senior legal officer dismissed the Article 32 hearing," Lederer explained.

"It was readily apparent [to us] that the local authorities had exceeded their authority," Lederer continued, "but the local authorities will do this if they think they can get away with it. Reporters should not assume that decisions are being made for the right reasons even if the reasons appear to be moral and are sympathetic."