US Military Continues To Violate The Law By Limiting Access To Court Records

Court transparency and equitable access to court documents are ongoing struggles. The federal court system's malicious compliance with congressional directives has given us exorbitant fees and a clunky, counterintuitive platform for online access to court documents.

Part of the federal court system doesn't even give us that much. Despite being subject to a 2016 law mandating access to military court documents, the US military's court system has continued to do its own thing. For seven years, it pretty much completely ignored the law ordering it to perform timely" releases of court documents at all stages of the military justice system."

This hasn't happened. A recent Pentagon directive finally addresses the seven-year-old law. But the directive merely tells military branches it's still business as usual, no matter what the law says. Megan Rose has the details for ProPublica.

Caroline Krass, general counsel for the Defense Department, told officials from the Army, Navy, Air Force, Marines, Coast Guard and Space Force in a memorandum last month that they could mostly continue doing what they have been for years: keep many court records secret from the public.

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The guidance tells the services they do not have to make any records public until after a trial ends. It gives the military the discretion to suppress key trial information. And in cases where the defendant is found not guilty, the directive appears to be even more sweeping: The military services will be allowed to keep the entire record secret permanently.

ProPublica has long known the military isn't following the law. It sued the Navy late last year for refusing to hand over court records related to an extremely questionable arson prosecution. The violations will continue, it appears, officially blessed by the DoD's head legal rep.

The memo [PDF] appears to instruct the military's court system to act more like the rest of the federal court system.

Public access to military justice docket information, filings, trial-level court documents, and appellate documents should follow the best practices of Federal and State courts, to the extent practicable.

Then the discretionary part kicks in. To the extent practicable" aren't words that inspire efforts meant to surmount obstacles. They're words that encourage lackadaisical efforts - something that doesn't even rise to the level of trying. It encourages failure due to a lack of effort, so long as actual success can still be portrayed as impracticable.

These aren't the best practices of federal and state courts, which generally make most documents available almost immediately.

Absent extraordinary circumstances, filings, trial-level court documents, and appellate documents will be publicly accessible no later than 45 calendar days after the certification of the record of trial (at the trial court level) or after the Court of Criminal Appeals decision (at the appellate level).

Extraordinary circumstances." Just a little more discretionary leeway. And while the memo notes courts are free to make documents available earlier, they won't be considered in violation of a directive that is pretty much in direct violation of federal law.

A 45-day delay means most court records will be of limited public interest and of almost no use to journalistic agencies, which rely on the newsworthiness of their reporting to attract readers and viewers. And what will be made public won't be everything that's made public by other courts.

The services do not have to provide transcripts or recordings of court sessions or any evidence entered as exhibits, according to the Pentagon guidance. And the Pentagon does not consider any preliminary hearing documents to be part of the trial record.

In the military, there is a proceeding called an Article 32 hearing to decide whether there is enough evidence for a trial. Under the new guidance, the military won't have to put these hearings on the docket, so the public won't even know they are happening.

If there's any upside, it's this: the guidance does not allow the military to continue to abuse Freedom of Information Act exemptions to redact or withhold court documents. That kind of thing doesn't fly in the US federal court system and it definitely has no place in the military court system.

The rest is all downside. A law is only as effective as its enforcement. Unless Congress is willing to step in and force the Defense Department to issue new guidance that actually complies with the 2016, the military will continue to play keep away from taxpayers.