Posted on 08/18/2008 7:10:56 AM PDT by xzins
Study says military justice lacks full transparency
By Jeff Schogol, Stars and Stripes
European edition, Sunday, August 17, 2008
The full report ...
For the full report on public access to military court proceedings, go to
http://www.rcfp.org/militarydockets
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."
I think Fred ran across this in the defense of Evan.
Implications for “DefendingOurTroops”
Is it even supposed to be transparent?
As the article points out, there are no prohibitions against putting out this information. They simply choose not to.
Good question, and the answer is a qualified yes. An Article 32 investigation is a public forum, as is a court martial. Does that mean it has to be advertised? No. Article 15 punishment (nonjudicial punishment) is not open unless the accused requests that it be open. Administrative discharge boards are not generally open to the public.
Does that mean everybody in the military knows the right answer? No, and we’re so snakebit by what some members of the press do with the information that many commanders/SJAs adopt a “better safe than sorry” approach, which is generally unhelpful.
Colonel, USAFR
Colonel, USAFR
Redact one o’ them “Colonel, USAFRs”.
Colonel, USAFR
Um, yeah, that's right. It's not. And gee willakers! You don't get a jury of your peers either!
The object of Law in civil life is Justice. The object of Law in military life is Discipline. Sometimes the two coincide. When they don’t — too bad.
Awaiting the first, “When you join the military, the only rights you have are for three squares and a cot; you give up the rest” pablum that often shows up.
Tick, tick, tick.
Agreed...entirely too many colonels running around ;-)
Seriously though, the article didn't state who they spoke to at the base...The article only says, "More than half of military bases contacted could not say if military proceedings were going on or who was involved..."
One of the responses the *study* sneered at was, "The official didn’t have the information or know where to find it." I wonder what "official" they called, the MP guard shack at the front gate? The PAO? The JAG Office? The installation commander?
I'm willing to bet in any municipal area in the United States, I could ask the dog catcher, or city engineer's office what/how many grand jury hearings were presently convened, and then write an article stating, "The heads of several city and county departments we spoke with had no knowledge whatsoever regarding current grand jury proceedings."
Well, I like military music....
As you should.
Listen here:
http://www.marineband.usmc.mil/audio_resources/discography/index.htm
here: http://www.navyband.navy.mil/sounds.shtml
and here: http://www.usafband.af.mil/recordings/
Me, too -- in its place. Addendum to my Post 8, above: the object of Music in civilian life is Beauty. The object of Music in military life is Discipline.
Is there a pattern forming here?
You don’t actually believe that unjust discipline is a good thing, do you?
Looks like a short wait. The first was posted as you were typing yours (it’s number 8).
Moni Basu, a reporter at the Atlanta Journal-Constitution for 18 years, has been covering the Iraq War since 2002. During the summer of 2007, Basu was assigned to the case of Army Spc. Christopher P. Shore, who was charged with murdering an Iraqi detainee in June 2007 during a raid in the northern Iraqi city of Kirkuk. Shore, a Georgia native who claimed his platoon sergeant ordered him to “finish” the wounded detainee, was tried by court-martial at Schofield Barracks in Hawaii.In reporting the story beginning in July 2007, Basu said she was initially tipped off by a report from another newspaper rather than a military officials. After then contacting an Army PAO, Basu said she received a charge sheet that included no factual detail about the alleged crimes. In addition to the general charges filed against Shore, Basu said the PAO would only tell her that the soldier’s Article 32 hearing was “sometime in October.”
“As far as the details of the case, the Army wasn’t about to tell us anything more than what was on that charge sheet,” said Basu, who has been embedded with American military units in Iraq seven times since the war began. Basu said she became reliant on Shore’s father and civilian defense attorney to learn any details of the case. Eventually Basu traveled from the Journal-Constitution’s bureau in Atlanta to Hawaii to cover Shore’s Article 32 hearing in October. She missed the court-martial because she returned to a new embed assignment in Iraq when it was held.
When Basu returned from Iraq, she waited patiently for the military to release a decision in Shore’s case, which was particularly important to the Journal-Constitution’s readership because Shore was the first Georgia-born soldier charged with murder during Operation Enduring Freedom. Despite the fact that Basu had written several stories about the Shore case before and after Shore’s criminal proceedings and that she had alerted Army PAOs as to her interest, Basu only learned of the court’s initial decision in the matter from the defense attorney, the day after the decision was released. In February 2008, Shore was found guilty of aggravated assault with a loaded firearm instead of murder. “If I’d waited for [the base PAO] to send it to me, we would’ve been late with the story,” Basu said.
Back on the West Coast, North County Times military reporter Teri Figueroa noted that even with Camp Pendleton’s relatively comprehensive system, the base’s docket is typically only updated the Thursday or Friday just before the following week’s proceedings are scheduled. The short notice leaves Figueroa little time to adequately prepare for the complex criminal proceedings that often ensue just days after she is made aware of them. “It’s a sliver of access. It’s like a crack in the door,” said Figueroa, in describing Camp Pendleton’s docketing system. “I get a little bit of access, but I need more for it to be viable public access — credible, legitimate public access without having to beg.”
I remember that the inability to get information is the reason that Evan’s family was on the hook for thousands of dollars in defense expense. They had to fly themselves and a legal team back and forth to Iraq.
It seems to me that the refusal to post information, or place the trial in a location that allowed free access to information, was a mistake in the prosecution. The judge permitted Evan to be disadvantaged in his ability to defend himself.
I would make that item as one concern on my larger list of appealable problems with the trial.
Thanks for posting this, Chaplain. DefendOurMarines.org and DefendOurTroops.org get a fair amount of attention because we get scoops on military justice cases that no one else does.
The other side of the story, however, is that we often get scoops because no one else cares.
I heard recently that Pendleton is dismantling its media center. The PA operation (including the informational website) was once overseen by a lieutenant colonel and now is being run by a gunny sergeant.
Pendleton isn’t trying to be less transparent. They’re doing it because Mark Walker of the NC Times and Chelsea Carter of the AP are the only two media people who show up.
So while the military may have a transparency issue with UCMJ cases, the media isn’t covering them anyway. It’s possible that the personnel contacted by Stars and Stripes were just shocked that anyone would care.
Certainly not. All the parties in military law should strive for justice. I am simply pointing out that in a court-martial setting, esp. during wartime, justice is a secondary consideration. We have all seen it happen.
Why qualify the “yes”? At least some of the men you convict end up in Leavenworth so this isn’t penny ante crap. Can’t the UCMJ process stand up to scrutiny?
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