The Pentagon is seen in October 2021. (Robert H. Reid/Stars and Stripes)
The Army has begun to post publicly the schedule of preliminary court hearings used to determine whether there is enough evidence against a soldier charged with a crime to warrant a court-martial.
Posting the hearings on the service’s court docket stems from a January memo from the Defense Department General Counsel’s Office to implement the change, which is part of an ongoing effort mandated by Congress in 2016 to make the military court system’s transparency mirror that of other federal courts.
The preliminary hearing, known as an Article 32, is the first time the public can learn details about what a service member is accused of doing and what evidence exists for the charge. From there, an officer leading the hearing will recommend whether the case should go forward to a trial.
“This is a positive step forward for more transparency in military court proceedings,” said Sean Timmons, an attorney at Tully Rinckey, a law firm that often handles military court cases. “It is important for the community to witness proceedings to ensure commands don’t get too insular, and to root out implicit bias and to ensure the accused has a fair and impartial proceeding that fully respects all constitutionally required due process rights for all parties involved.”
The Navy began posting the preliminary hearings onto its docket in September, the service said, in response to an August 2023 memo from the Navy-Marines Corps legal office.
The Air Force said it will begin posting the information as well but did not provide a timeline for implementation.
To attend hearings, the public needs this advanced notice to help people make arrangements to gain access to a military base, Timmons said.
“Generally, the public is welcome to attend hearings, but the logistics, access to the installation and remote location of many bases make attendance at technically open court proceedings exceedingly complex,” he said.
The Pentagon has also called on the services to begin posting a summary of each completed court-martial online within seven days, which is significantly faster than the 45-day deadline previously allowed. However, the services still have 45 days to post documents related to the court-martial.
“Our goal is always to be transparent about the court-martial process for the public to the extent that’s permissible under the law, to make sure the public understands what’s going on and that they have the availability to get information about cases that’s publicly releasable. We hope that this is accomplishing that,” said an Army official, speaking on condition of anonymity.
While the move is progress, the transparency of military courts doesn’t match that of other federal courts, which post documents online for public access while court proceedings are ongoing. The public can read any motion filed by an attorney, or any decision a judge makes, often on the same day that it happened in court.
Federal courts also post a summary of each hearing almost immediately after it happens.
Many state and local courts offer similar access or will release documents upon request.
Getting this information in a timely manner helps communities consider the situation and gives closure to a situation that might be of public interest for discussion, Timmons said.
The information included in online military court dockets varies by each service. The Army will release the full name of the accused soldier, but the Navy, Marine Corps and Air Force only list the person’s last name and first initial. All services only list the article that the person is accused of violating from the Uniform Code of Military Justice, the law that dictates all aspects of the military justice system. They do not list the actual crime.
For example, Article 134 is a charge of discrediting the armed forces that isn’t covered under another article and is commonly used for adultery and crimes involving child sexual abuse material. To understand exactly what the person on the docket has been accused of doing, a member of the public would need to be in the courthouse to hear the case.
