More than two years after ProPublica sued the Navy over its failure to provide public access to military courts, the Department of Defense has for the first time directed U.S. military branches to give advance public notice of preliminary hearings, a crucial milestone in criminal cases.
These “Article 32” hearings end with a recommendation about whether the case should move forward, be dismissed or end in a nonjudicial punishment.
DOD General Counsel Caroline Krass issued the guidance earlier this year, directing the secretaries of the Navy, Army, Air Force and Homeland Security (which oversees the Coast Guard) to post upcoming preliminary hearings, provide access to certain court records and publish results of military trials — known as courts-martial — on a public website.
But legal experts say the new guidance falls short of the conditions laid out in a federal law requiring the military to dramatically increase public access to its justice system.
The military has long resisted opening its proceedings to the public. The 2016 law, passed after revelations about rampant sexual assault in the armed forces, instructs the DOD to develop policies similar to civilian courts that provide public access to “all stages of the military justice system.” The federal court system gives the public wide-ranging, real-time electronic access to hearing schedules and filings in all but the most sensitive criminal cases.
In contrast, the military typically withholds all court records while cases are active and keeps records secret indefinitely if a defendant is found not guilty. It also grants no public records access to cases in the preliminary hearing stage, including reports recommending whether cases should be dismissed or move forward to court-martial.
Experts say the lack of transparency robs the public of the ability to understand whether the military justice system operates fairly and how the branches are responding to issues like sexual assault within the ranks.
The new guidance doesn’t change any of that. It requires the military to disclose outcomes of court-martial hearings, but not until up to seven days after they conclude. Records from trials and appeals don’t have to be made public until 45 days after the record is “certified,” which can be months after a trial or appeal concludes.
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And the new guidance requires the military to give at least three days’ notice of upcoming preliminary hearings in its courts. That gives anyone interested in attending a preliminary hearing just a few days to obtain clearance to enter a military base where the hearing is scheduled to be held and travel to the base, possibly across the country. Getting clearance to enter a military base can take a week or more depending on the location.
Even then, attendees wouldn’t know the significance of the case or even the accused’s full name unless they were directly involved. The Navy began posting notices of preliminary hearings late last year on its court website, but those postings currently lack the full name of the accused and don’t explain what the person is accused of beyond a crime category.
“The preliminary hearing phase is often when public interest in a controversy is highest,” said Franklin Rosenblatt, associate professor at the Mississippi College School of Law and president of the National Institute of Military Justice. “News media, affected communities and others now have more of a glimpse into the military justice process than they had before. But ultimately these are half measures. This is not the kind of contemporaneous access to criminal dockets that the rest of the country has come to expect.”
ProPublica’s lawsuit seeks contemporaneous access to court records at all levels, including to cases that resulted in acquittals, and a ruling that this kind of information is presumed open unless the military shows on a case-by-case basis that there’s a compelling need to withhold it.
The Reporters Committee for the Freedom of the Press and 34 media organizations have filed an amicus brief in the case, arguing that the military’s opaque practices don’t comply with federal law and decades of court rulings, including several from the U.S. Supreme Court. ProPublica is represented in the suit by its deputy general counsel, Sarah Matthews, and by pro bono attorneys at Gibson, Dunn & Crutcher LLP and Sheppard, Mullin, Richter & Hampton LLP.
“We’re happy to see some incremental progress, but it is far less than what the First Amendment and a congressional mandate demand,” said Matthews. “Three days is often not enough time to get access to the base, and since the Navy withholds charge sheets until a case is over, the public won’t even know what the hearing is about or whether it’s worth attending. And the Navy still withholds all court records while the case is happening, only releasing a tiny fraction of the record months or even years after a case has ended, and then only if the defendant is found guilty.”
Matthews said this practice “makes it virtually impossible for the public and press to know if military courts are treating service members fairly and if justice is being done.”
The Navy does not comment on pending litigation, a spokesperson said.
In a December motion, attorneys representing the Navy, then-Defense Secretary Lloyd Austin and other defendants asked a judge to dismiss the suit, arguing that decisions about military policy on court access are not up to the judicial branch and that the First Amendment does not require contemporaneous or “unfettered” access to such records and hearings. ProPublica opposed that motion in January.
The Navy has repeatedly and broadly invoked the federal Privacy Act as a reason to withhold military court records, a law ProPublica argues does not apply because the act does not trump the First Amendment or permit blanket sealing of court records. The DOD has also acknowledged it can release records despite the Privacy Act.
The Navy’s handling of a high-profile arson case prompted ProPublica’s lawsuit, filed in the Southern District of California’s U.S. District Court. In 2020, the amphibious assault ship USS Bonhomme Richard caught fire and burned for more than four days. The ship was destroyed, a more than $1 billion loss to the Navy.
The Navy prosecuted Seaman Recruit Ryan Mays on charges of aggravated arson and willfully hazarding a vessel. ProPublica found there was little to connect him to the blaze, including no physical evidence that Mays — or anyone — set the fire.
Mays was found not guilty at his court-martial in 2022, and ProPublica sued that year over the Navy’s refusal to release any court documents associated with his case.
ProPublica has asked the court to order the secretary of defense to issue proper rules for the release of records, hearing schedules and other information. The government tried to get that part of the lawsuit dismissed, arguing that Austin was allowed to decide how to implement the law.
A federal judge ruled last year that ProPublica’s claims against Austin should move forward. The judge wrote that ProPublica has “plausibly alleged that the issued guidelines are clearly inconsistent with Congress’ mandate.”
A recent independent federal review of the military justice system by a panel of experts recommends that the DOD fully comply with the 2016 law by developing electronic access to public dockets and providing “direct public access to pretrial, trial and appellate court-martial records at the time of filing.”
“More accurate data and greater transparency are needed to enhance trust and confidence in the system,” the review states.
Megan Rose contributed reporting.
