Open to those in the know

The media has a right to attend military court proceedings, but finding out when the hearings are is difficult without a docket.

From the Summer 2007 issue of The News Media & The Law, page 21.

By Nathan Winegar

If a court-martial is open to the public but no one outside the military knows when or where it is happening, does it violate the First Amendment? The failure to provide dockets to reporters who try to access official military justice proceedings has a certain tree-falling-in-a-forest quality to it.

Despite the fact that military courts have recognized a constitutional right for citizens to attend and witness courts-martial and other criminal hearings, there is no formal system in place to inform the public when or where they might be able to exercise that right.

And a recent letter from the top lawyers from four branches of the military announced they have no intention of creating a docket or anything like it.

“Without a docket or some form of adequate notice, the First Amendment right to attend hearings doesn’t mean that much,” said Matt Freedus, a Washington, D.C.-based lawyer who handles military access issues. 

The problem

Though there are some differences as to form and style, civilian courts universally utilize some type of docket, which keeps parties, court officials and the public apprised of when official hearings take place. Usually a clerk of court manages the docket using input from judges and lawyers.

In contrast, the military practices for coordinating misconduct hearings can vary widely depending on the practices of the service branch or even individual bases. While some military bases are equipped with public affairs offices that regularly update online dockets, other bases refuse to provide any information about pending hearings.

“Anyone who is interested in a court-martial, the only way for them to know is to call every base individually and take a shot in the dark,” said Kathleen A. Duignan, the executive director of the National Institute for Military Justice, a nonprofit group that promotes understanding of the military justice system.

In an attempt to catalog the various approaches, last year Duignan enlisted three interns to contact every military installation to determine how they maintain records. Duignan had hoped to use the information to develop a prototype for a centralized docketing system, but in some cases she was surprised to find that military officials would not release the information at all.

“I presumed the right to a public trial meant the right to a public docket,” Duignan said.

Faced with this disparate (and possibly unconstitutional) response, Duignan went up the chain of command, writing separate letters to the judge advocate generals, the top lawyers of each of the five military branches Army, Navy, Air Force, Marines and Coast Guard. She requested the creation of a docket and offered the resources of the institute in accomplishing this goal.

The Coast Guard has been cooperative, but the other four branches declined to alter the current system in an unexpected joint letter. The judge advocates identified various interests at play, including “protecting individuals accused of offense,” “improper publicity,” “discipline,” and “the need for transparency and public understanding of the military justices system.”

“Striking this necessary and delicate balance requires the exercise of sound judgment by the commanders responsible for both administering military justice and providing information to the public and the media,” the lawyers wrote.

By invoking vague concerns of “improper publicity,” the judge advocates’ letter appears to endorse more restrictive access to logistical information about the location of courts-martial than the actual proceeding itself, where military courts have ruled that the public’s First Amendment right of access can be curtailed only in narrow situations, usually involving national security or a defendant’s right to a fair trial.

The U.S. Court of Military Appeals, which handles cases for all people subject to the Uniform Code of Military Justice, described in a 1977 case the broad access the public is entitled to in military justice proceedings. The court chided a trial judge’s decision to close off an entire proceeding when more selective closures would have served the interests at stake.

“In excising the public from the trial, the trial judge employed an ax in place of the constitutionally required scalpel,” the appeals court wrote.

This right of access has been reaffirmed by military courts over the years, with one of the most recent cases coming in 1997, where the recently renamed U.S. Court of Appeals for the Armed Forces ruled that access extends not only to courts-martial, but also to preliminary so-called Article 32 hearings.

These military decisions are based upon U.S. Supreme Court rulings that the public has broad access to civilian courts, which can be curtailed only with narrowly tailored procedures designed to protect compelling interests. But because civilian courts also have open dockets, no civilian court has had a reason to explicitly find that notice is a necessary prerequisite to public exercise of its First Amendment rights.

The implications

The curtailment on reporting wrought by a lack of a military docket is a problem familiar to Tim McGlone, a reporter for The (Norfolk) Virginian-Pilot, a newspaper in a southeast Virginia town that is home to a major naval base. While covering military affairs in 2005, Norfolk Naval Station had no public docket available and McGlone said he had to check in regularly with the public affairs office to find out if any misconduct proceedings were going on. Considering that the Norfolk base is one of the largest naval institutions on the East Coast, McGlone was skeptical when he was being informed of only a handful of cases.

“I was always suspicious that was all they had,” McGlone said. “At the time they told me that was the best they could do.”

It was through other sources, not the established public affairs channel, that McGlone first learned that espionage charges had been lodged against a petty officer at the naval station.

McGlone began to try to flesh out the details of the charges and what proceedings were scheduled, but with no formal docket system in place, he was left to the whim of the individual public affairs officials.

“I don’t want to call it a lie, but I did not get the correct information,” McGlone said.

Other reporters have been told they need to file Freedom of Information Act requests to receive docketing information. Not only is this impractical given the lengthy time limits of the FOIA statute (an agency has 20 business days to respond to a request) but also ignores the constitutional issues implicated in accessing military courts, Freedus said.

“FOIA just doesn’t work fast enough or efficiently enough,” Freedus said. “Access to court records should not be governed by FOIA. It doesn’t work that way in federal district court, and there is no reason it should work differently in the military justice system.”