Secret Justice: Summer 2008 Off Base Fighting for Access to Military Court Dockets and Proceedings The charges had been sitting there for months: sexual misconduct, sodomy, aggravated assault. But by the time Lt. Cmdr. John Thomas Matthew Lee was court-martialed in early Decem- ber, after admitting he’d lied about his HIV-positive status and had sex with an officer, word of the allegations was just getting out. Military prosecutors had pieced to- gether a stunning case, that the Catholic Navy chaplain had engaged in a string of sexual dalliances and potentially jeopar- dized the health of untold numbers of service members — including two Naval Academy midshipmen. In the civilian world, reporters would have been crawl- ing over the case. They’d have kept up- to-date through the docket system and shown up regularly in court. continued inside tially unidentified victims denied treatment for HIV exposure, they may have unknow- ingly spread the disease. As an editorial in the Marines Corps Times and Navy Times put it just after Lee’s court- martial: “It might not sound like much, but ask the victims whether they would like that time back. More important, ask anyone who’s had sex with the victims since then.” The Background The public right of access to military court proceedings, including Article 32 hearings and courts-martial, is well es- tablished. There has long been a right of access to civilian criminal trials, which the U.S. Supreme Court enhanced in 1980 as a First Amendment right through its land- mark precedent, Richmond Newspapers, Inc. v. Virginia. Military courts adopted this same right of access through their own decisions, including United States v. Hershey, soon after Richmond Newspapers was decided. AP PHOTO Those same military courts have not Lt. Com. John Thomas Matthew Lee, shackled and hidden beneath a jacket, is reached similar conclusions regarding ac- escorted from his court-martial on Dec. 6, 2007. cess to court dockets, in part because there is no guiding Supreme Court precedent on continued from front page martial schedules to be released through the issue comparable to Richmond Newspa- But Lee was tried in the system of mili- a public docket. Lee’s case illustrates the pers. Most civilian courts have long relied tary justice, and as such his case almost made alarming potential consequences of deny- on standardized and relatively ubiquitous it through unnoticed. It was only because a ing journalists and the public access to any docketing systems that are publicly avail- Marine Corps Times editor bumped into an sort of case-calendar system. But the issue able, pre-empting the need to sue for docket old source who tipped him off to the story is hardly a new one. access. While critics have argued that a se- that it became public at all. Despite the fact that the highest military cret docketing system undercuts the public The article ran two days before Lee’s courts ruled more than a decade ago that right of access to the judiciary, military court-martial. Most of the charges were the public has a First Amendment right of courts have continued to treat docketing as four months old. access to both military courts-martial and an administrative issue instead of a consti- The Marine Corps, like every other “Article 32” preliminary hearings, military tutional one. military branch, does not require its courts- public affairs officers still routinely reject “What it does is turn the right of ac- reporters’ requests for court dockets. cess into a hollow promise,” said attorney Even when dockets are released, the Eugene Fidell, a partner at Feldesman information is often so general and devoid Tucker Leifer Fidell LLP in Washington, Acknowledgements of meaningful detail that the public is still D.C. Fidell specializes in military law and left in the dark. When it comes to public is president of the National Institute of This guide was primarily re- access to military court proceedings, a Military Justice (NIMJ). searched and written by Scott Al- constitutional key can be essentially useless Congress passed the Uniform Code of bright, the Reporters Committee’s if one cannot find the gate. Military Justice (UCMJ) in 1950 as the Jack Nelson Legal Fellow, along with Lee’s attorney, who helped secure the primary statutory authority for military the assistance of Barbara Fought and plea deal that would ensure his client will criminal law. More specific regulations in Colleen Keltz of the Tully Center likely spend just 19 months behind bars, military justice procedure are found in the for Free Speech at the S.I Newhouse praised the Marine Corps “because their Manual for Courts-Martial, created through School of Journalism, Syracuse Uni- primary interest here was to protect people,” a presidential Executive Order in 1984. versity. according to a newspaper report. The Army, Air Force and Coast Guard The Reporters Committee re- But was it really? While some victims in each have branch-specific regulations that leases this guide in conjunction with the case were reportedly notified that Lee supplement the manual, while the Marine a White Paper further examining the is HIV-positive, it remains unclear if Lee Corps and Navy share a version of similar legal issues involved surrounding ac- actually identified all of the victims preyed regulations. cess to military court proceedings and upon during his 12-year military career. Publicly available docketing within the dockets. Both are available online at Other victims who may not have been no- military judicial system appears to derive www.rcfp.org. tified directly by the Marine Corps earlier from base-specific policies that are often This guide was funded in part by in the investigation had to wait more than only found in practice rather than in pub- a grant from the McCormick Foun- a month from the time the Corps brought lished regulations or guidelines. dation. Lee’s HIV-related charges to the time the Two Marine Corps bases in particular case was first publicized in the newspaper. illustrate the disparities that exist within During that period, not only were poten- branches. The docketing system at the Page 2 The Reporters Committee for Freedom of the Press Summer 2008 Corps’ Camp Pendleton in California is Newhouse School of Public Communica- Campbell, Ky., Fort Meade, Md., and Fort relatively extensive, posting a spreadsheet tions to analyze the need for a centralized Jackson, S.C., neglected to mention the on its base Web site that includes the defen- and standardized military docketing system, docketing site to the Tully Center. In some dant’s name, rank and unit; the date, time available to the public. instances, the survey shows, those contacted and type of proceeding; and the courtroom In a random survey of just more than at the Army bases either directly rejected where it will be held. one-fourth of U.S. military installations the caller’s request or otherwise admitted But a public docketing system at the world-wide, the Tully Center asked military they didn’t know if the public was entitled Corps’ Air Station New River in Jackson- base personnel for basic docketing informa- to court docketing information. ville, N.C.? None exists, even though the tion. Of the 75 bases that responded to the Some officers also instructed the Tully base has held relatively high-profile general Tully Center call, 45 percent refused to pro- Center caller to file FOIA requests to obtain courts-martial, including the 2003 trial of a vide any information on scheduled Article court dockets. While military courts are a Gulf War veteran who disobeyed orders and 32 hearings. Some 37 percent declined to subset of the Defense Department and are refused an anthrax vaccination. disclose courts-martial schedules. therefore arguably part of a federal agency In 2006, the NIMJ engaged subject to FOIA, legal ex- the docketing issue head-on, perts generally agree that sending letters to the Judge access to military courts and Advocates General of each of the documents they produce the five military branches re- is a constitutional issue as questing support for a central- opposed to a FOIA issue. ized online docketing system To the degree that mili- to be managed by the NIMJ. tary court docketing in- Responding collectively in a formation can be accessed letter, the Army, Air Force, through FOIA, it’s typically Navy and Marines JAGs re- not a practical solution for jected the idea, arguing that reporters on deadline. “teaming” up with a private “The problem with entity such as the NIMJ would [FOIA] is that it takes for- be inappropriate for a govern- ever,” Fidell said. “It’s totally ment agency, and that such incompatible with the needs a docketing system would of daily journalism or even otherwise trigger privacy con- monthly journalism.” AP PHOTO cerns. Navy Petty Officer 3rd Class Ariel Weinmann, here reading letters “We recognize that this from school children to military service personnel, was held for Deficiencies is not the response that you four months before his Article 32 hearing on espionage charges. In their day-to-day jobs, desired,” the JAGs wrote. “We military court reporters are committed to increasing the public’s (The Tully Center’s methodology, and around the world say they often experi- understanding and awareness of the military additional details on the survey, can be found ence a sense of personal conflict. On the justice system in a manner consistent with in the sidebar on page 7.) one hand, the institutional challenges that our obligation to protect the privacy and The Tully survey also found that more encumber military reporting at nearly every dignity of our service members.” than one-third of the bases that who agreed turn test journalistic skill and allow report- to provide docketing information still with- ers to prove their mettle: the old-school, The Tully Center Survey held basic details, such as the defendant’s pavement-pounding stuff.