Consistently Inconsistent

From the Summer 2008 issue of The News Media & The Law, page 21.

They have the records . . . or they don’t. They aren’t meant to be released to the public . . . or they are, but you can’t get a hard copy.

Trying to get access to military court dockets — or find out if they exist in the first place — is exhausting. And we’re not even the beat reporters covering military bases who do this on a daily basis. But the Reporters Committee has been hearing from them about barriers to access for years. So along with researchers from the Tully Center for Free Speech at Syracuse University, we spent the better part of a year examining and evaluating the problem.

What we learned is that even with military rules and court opinions requiring the military to keep its court proceedings open, practically speaking, it is very difficult for others to learn what is going on.

Getting into a military courtroom is not as easy as citing the rules that allow it — there are endless hurdles on the run to the courthouse. There may or may not be a docket that tells you when and where a proceeding is occurring; if it exists it may be full of gaps. And if you do find out where to go, you will likely have to arrange an escort to get you on base. It’s a little more cumbersome than the metal detector you breeze through at your county courthouse.

Playing by the rules?

The nation’s highest military court agrees that the public has a First Amendment right of access to military court proceedings. But as Scott Albright tells us in this magazine’s pullout section, “Off Base,” that right does a reporter no good when he or she doesn’t know which cases exist to cover.

Scott talked with reporters who cover military matters and learned that if they can’t find a way around the system — through contacts within the bases, confidential sources or chance run-ins — they’re probably missing big stories.

Though civilian courts have found a constitutional right of access exists with regard to court dockets, the military courts have not extended that right to their docketing systems. Without comprehensive docketing systems in place to let the public know the criminal charges members of the military are facing, they cannot learn important details about the proceedings or, more importantly, protect charged servicepersons against abuses of the system.

While some bases keep docketing systems, and the Army has one big docket online, not all bases or branches make theirs publicly available. Additionally, key components of civilian dockets don’t always make it onto military dockets. For instance, the public might be lucky to see what type of hearing is scheduled for which day; the name of the serviceperson charged or the charges he or she is facing aren’t always part of the deal.

It is not that these details are non-existent or unavailable. Someone in the JAG Corps office or Public Affairs Office at the base or court would have to know who to expect in court, when and for what. But many bases and most branches refuse to centralize their processes or if they have done so, refuse to let the public see what they have put together.

This is contrary to both the principle of open government, giving the public the power of oversight on federally funded institutions, and the principle of open courts, which this nation has long recognized and supported. In both instances, access provides the public with greater understanding of its government and shores up trust in operations. When it comes to the military — a very visible public entity that very publicly represents and protects the interests of all Americans — these principles should be no less valued or upheld.

All courts should be open

Court proceedings everywhere should be open for public oversight, subject to limited instances that warrant closure. Whether civil or criminal, individuals bringing matters to public tribunals for resolution should all receive public oversight to ensure justice is properly meted out. There will always be instances when the public’s presence is not appropriate to a proceeding and there are many safeguards that courts can employ to protect privacy when it is justified.

But practical implications that result in a broad swath of court proceedings presumed closed, as they seem to be in the military, go squarely against the principles of openness this country has long upheld. Equally important, it prevents the public from performing its oversight function to ensure that members of the military receive the same fair trials as civilians.

Public docketing systems are a major start to ensuring those First and Sixth Amendment rights are guaranteed. The military does not dispute that its proceedings are, generally speaking, open to the public. But it does the public no good to have a standing invitation to a party if the time and date are left blank. That’s the type of consistency reporters keep facing that could stand to be more inconsistent.