Study says military justice lacks full transparency
August 17, 2008
ARLINGTON, Va. — The military justice system is "not nearly as transparent as it should be" according to journalism professor Barbara Fought.
Fought is the director of the Tully Free Speech Center at Syracuse University’s S.I. Newhouse School of Public Journalism, which conducted a recent study along with the Reporters Committee for the Freedom of the press on media access to military court proceedings and documents.
More than half of military bases contacted could not say if military proceedings were going on or who was involved, Fought said. "It’s difficult for a servicemember to get the constitutional guarantee of a fair and public trial if the public doesn’t know about the court event for that servicemember," she said.
Service officials cited privacy concerns and the need to guarantee a fair trial among the reasons why facts about military court proceedings may not be as accessible as they are in the civilian justice system.
In civilian courts, the schedule of upcoming court proceedings — known as the docket — is public record, but that is not always the case in the military justice system, according to the study.
"Publicly available docketing within the military judicial system appears to derive from base-specific policies that are often only found in practice rather than in published regulations or guidelines," the study said.
In a survey to which 75 military bases responded, 45 percent refused to provide information on scheduled Article 32 hearings and 37 percent would not give schedules for courts-martial, the study said.
"The survey showed that of the five military branches, the Navy most frequently limited access to information on courts-martial. More than half of the Navy survey respondents refused any public access to case docket information," the report said. "This compares to 22 percent for the Coast Guard, 25 percent for the Army, 31 percent for the Air Force and 42 percent for the Marines."
Reasons given for refusing to provide information included:
It could not be given out over the phone.The official didn’t have the information or know where to find it.Such information is given out on a case-by-case basis.It had to be requested via a Freedom of Information Act request."A Marine at Camp Foster in Okinawa, Japan, said information about a court-martial probably couldn’t be given out to the public for security reasons," the study said. "He said public knowledge of a court-martial could create a ‘potential target for something.’ "
In addition to the survey of military bases, the study includes interviews with several journalists who cover military court proceedings, including some reporters for Stars and Stripes.
Army spokesman Lt. Col. George Wright had no comment on the study Friday but said he was sending it to Army lawyers.
Representatives from the other services said they have reasons for controls on what information on court cases is public.
Before releasing information on courts-martial, the Air Force looks at whether the public interest in the case outweighs a number of issues, said service spokesman Lt. Col. Mark W. Brown.
"These issues include the impact on the integrity of any ongoing investigation; protecting the due process (right to fair trial) and privacy rights of an accused not yet ordered to face court-martial; and the privacy rights of victims and witnesses," Brown said in an e-mail.
Unless the Air Force determines there is a "significant public interest" in a case, information on ongoing criminal investigations, pending court-martial charges and other specifics of a case is only available via a Freedom of Information Act request, he said.
The Navy has a similar policy.
"Due to host nation sensibilities, hearing schedules are only posted in CONUS and Hawaii," said Jennifer Zeldis, a spokeswoman for the Office of the Judge Advocate General of the Navy. "The current OCONUS policy is to respond on an individual basis to queries about specific cases."
When hearing schedules are posted online, they do not include information on the accused or anticipated plea agreements "due to privacy concerns," she said.
The Marine Corps recognizes that information on court proceedings can be released to the public, said Corps spokesman Maj. David Nevers.
"Some bases and stations may choose not to advertise their court dockets, but we do have an obligation to accommodate legitimate requests for publicly releasable information, and the Marine Corps takes that responsibility seriously," he said.
The Coast Guard tries to make information on court proceedings "as readily available as possible," said Coast Guard spokesman Lt. Cmdr. Chris O’Neil. "Like any organization, there is room for improvement," O’Neil said. "We look forward to feedback that provides us the opportunity to make those kinds of improvements."
The full report ...
For the full report on public access to military court proceedings, go to www.rcfp.org/militarydockets