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National News

Military Court Records Might Go Public

April 21, 2024 posted by Steve Brownstein

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.
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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,” they 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.”
The complete article:
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.”

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