A federal judge ruled in March that ProPublica’s lawsuit against the secretary of defense should move forward, as the news organization seeks to increase public access to the military’s court proceedings and records.
ProPublica sued in 2022, claiming the Pentagon has failed to issue rules ensuring that the services comply with a law that was supposed to make the military justice system more transparent.
Although ProPublica’s lawsuit originated from a single high-profile arson case in which the Navy refused to release records, the suit challenges the overall legality of the Pentagon’s current guidance, which allows the services to shroud much of the court-martial process in secret.
ProPublica has asked the court to order Secretary of Defense Lloyd Austin to issue proper rules for the release of records and other key information, such as hearing schedules. The government tried to get that part of the lawsuit dismissed, arguing that Austin had already used his rightful discretion to decide how to implement the law. An order “dictating the precise content of DOD guidance is beyond the jurisdiction of the courts,” the said.
The judge disagreed, writing that ProPublica has “plausibly alleged that the issued guidelines are clearly inconsistent with Congress’ mandate.” This is most apparent, the judge said, in the allegation that the Navy denies the public access to all records in cases that end in acquittals.
“We’re thrilled with this ruling,” said Sarah Matthews, deputy general counsel for ProPublica. “It recognizes that the military’s current guidelines clearly fail to ensure public access as required by Congress. That’s huge and should be a wake-up call to the Department of Defense, regardless of the outcome of this case.”
In 2016, Congress passed a law requiring the U.S. military’s six branches to increase public access to its court records, envisioning a system similar to federal courts, where the public has real-time electronic access to dockets, records and filings. It wasn’t until last year — seemingly spurred by ProPublica’s lawsuit — that Caroline Krass, general counsel for the Defense Department, issued new guidance for court records. But rather than making the system more transparent as lawmakers intended, Krass’ guidance mostly reinforced the individual services’ policies, which keep court records largely inaccessible to the public.
Under the guidance, services do not have to make any records public until more than a month after a trial ends; have the discretion to permanently suppress key trial information, such as transcripts and exhibits; and are allowed to keep the entire record secret indefinitely in cases when the defendant is found not guilty.
As a result, the Navy withholds records during most, if not all, court-martial proceedings. The lead-up to a court-martial, and all related pretrial records, are never made public by the Navy. The public doesn’t know if a sailor or Marine has been charged with a crime unless the case goes to trial. And although Article 32 hearings, which determine if there’s enough evidence for trial, are supposed to be public, the Navy provides no notice of when the service is holding them.
The U.S. Army’s policies are similarly secretive. The service updated its rules late last year after Krass’ guidance was issued but, like the Navy, kept restrictions in place and gave officials broad discretion in many cases to decide whether to release any documents at all.
Lt. Col. Ruth Castro, an Army spokesperson, said if court records are requested by the public, the decision to release them is made by several high-level officials to “ensure consistency” and “properly balance the privacy issues of the accused, minors and victims.”
The Army also does not tell the public about Article 32 hearings, which “lets military officials decide to keep cases secret that might be embarrassing to the military,” said Frank Rosenblatt, president of the National Institute of Military Justice, a group that aims to improve fairness in the court-martial system. “Whether a case is in the ‘public interest’ should be decided by the public, not military officials.”
Since the Army, Navy and Marine Corps make up about three quarters of the military, the public is largely in the dark about the majority of the military’s criminal justice system.
In the last year, ProPublica has requested that the Navy provide the records for more than 90 cases of sexual assault and has received only partial documents for 32 cases that were already over.
“Collectively, the Navy’s policies prevent any meaningful oversight of its court system, including any visibility into how it handles sexual assault cases, a matter of paramount public importance,” ProPublica’s lawsuit states.
The military’s handling of sexual assault was deemed so inadequate by Congress that commanders were recently stripped of the power to press or drop charges in those cases. Last summer, President Joe Biden signed an executive order finalizing Congress’ mandate to give the power instead to a special prosecutor. The Navy’s current policies prevent the public from learning whether the new system is any better than how it previously handled such cases.
ProPublica’s lawsuit began in 2022 when the news organization fought for the release of court records in the case against Seaman Recruit Ryan Mays, who had been accused of setting fire to the USS Bonhomme Richard. The $1 billion amphibious assault ship burned for more than four days and was destroyed in 2020. A ProPublica investigation showed the Navy prosecuted Mays with little evidence and ignored a judge’s recommendation to drop the case. Mays was found not guilty at his court-martial.
ProPublica was successful in getting the Navy to release hundreds of pages of court-martial documents in the Mays case. ProPublica had sued the judge in the Mays case along with top Pentagon officials, but the court dismissed the judge from the suit since the Mays case is over.
In the ongoing lawsuit, ProPublica is also arguing that the records are owed to the public under the First Amendment and common law, which the Navy did not try to dismiss at this time.
The judge ordered the parties to file motions by September, which could resolve the case.
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