What should I do if I am shut out of a hearing or court-martial?

Under the First Amendment and Rules for Courts-Martial 405 and 806, convening authorities may not eject reporters from an Article 32 hearing or courts-martial without a written explanation identifying specific reasons why the right to privacy outweighs the public right of access.

Reporters who are asked to leave a proceeding or who are told upon arrival that it has been closed should "immediately request the written ruling — the decision is supposed to be in writing — from the military judge or investigating officer," Lederer recommends.

Whether or not the ruling is in writing, object orally and in writing to the closure.

The 1997 case ABC Inc. v. Powell (see sidebar) is an excellent decision to cite, according to Crawley, because the language makes clear that both courts-martial and pre-trial proceedings are presumptively open.

Also, request the opportunity for the media organization to present its objection orally and in writing on the record of the proceeding and to respond to the positions of the parties. "These are also procedural due process rights established by military case law," Lederer said.

If the authority refuses to do so, and reporters who have access to counsel should seek out an attorney who can appeal the decision to the military appellate court.

Be prepared to experience more frustration at Article 32 hearings than at courts-martial, because investigating officers in Article 32 hearings often have no legal training — they are not required to — and are often ignorant of the public's right of access.

It may be difficult to get a presiding officer to reconsider a decision to close a session, but it is not impossible. At one court-martial hearing reporter Tom Roeder attended, the government wanted a CIA operative to testify in a closed session but Roeder and other media publications insisted the testimony take place in an open courtroom. "We objected on the record during a trial and got the judge to reconsider what he had decided," Roeder said. "Getting to watch the CIA guy testify from behind a curtain was just awesome."

Once admitted to a proceeding, reporters may take written notes of the proceedings while in the courtroom and sketch artists may draw court participants. Audio and visual recording devices, however, except for those necessary for preparation of the record of trial or for use as an aid to the introduction of evidence at the court-martial, are prohibited.

A reporter's ability to talk to witnesses in Article 32 hearings and courts-martial depends on being able to locate the witness and on his or her willingness to talk. Most service people, and therefore, most witnesses, live on base or installation, on which the public is not permitted to freely roam. But if a witness can be contacted, there are no rules barring interviewing them, although, as with civilian courts, gag orders can be entered in individual cases that may limit what witnesses can say about a case.

Records and evidence

Though reporters have a right of access to the record of a court-martial and Article 32 hearing, the process for gaining access can be long.

"The military generally does not provide any documents submitted to the court prior to the close of the hearing so the best method is to be present at the hearing," Lederer said. "In the military system the closure of proceedings by the military judge is not the final step. The record of trial has to go through a review process by the judge, local staff judge advocate and then is sent to the convening authority for implementation. The military argues that the record is not final and releasable until this process is complete." According to Lederer, this process "can take months."

Reporters should ask the presiding official for access to inspect evidence. If a journalist's request for evidence or access to a witness is denied, he or she may appeal the denial to the convening authority and then follow the convening authority's chain of command up to the service level. This process, however, is slow and unlikely to be successful, according to Lederer. Alternatively, reporters may take the objection directly to the service Court of Criminal Appeals.

Court documents, such as a record of trial, may be obtained by contacting the clerk of a military court, or through the Freedom of Information Act (the military is subject to FOIA, unlike civilian courts, and no exemption applies to records of closed cases). Again, however, individual documents in the record may not be released if the military judge seals that portion. This may occur, for example, in a child pornography case. The military judge routinely orders any images of child pornography that were admitted into evidence to be sealed, with authorization to open such exhibits limited to the convening authority, his staff judge advocate, the appellate courts, and appellate counsel. The purpose behind this is to ensure that the judicial system is not a party to the further dissemination of these images.