Does a member of the public have a right to attend a court-martial?  Those of us in the system answer, “Of course.  R.C.M. 806.”  But some government officials nevertheless attempt to control public or media attendance at military judical proceedings — generally with negative results.

R.C.M. 806(a) provides:  “Except as otherwise provided in this rule, courts-martial shall be open to the public.  For purposes of this rule, ‘public’ includes members of both the military and civilian communities.”  The first of the Rule’s two exceptions is for control of spectators:  

In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, and exclude specific persons from the courtroom. When excluding specific persons, the military judge must make findings on the record establishing the reason for the exclusion, the basis for the military judge’s belief that exclusion is necessary, and that the exclusion is as narrowly tailored as possible.

The other exception is for closure: 

Courts-martial shall be open to the public unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the military judge makes case-specific findings on the record justifying closure.

While R.C.M. 806 is more specific than its predecessors, the rule of openness is long-standing in military law.  Paragraph 53e of both the 1951 and 1969 (Revised) MCMs began by decreeing that “[a]s a general rule, the public shall be permitted to attend open sessions of courts-martial.” 

In light of the presidentially prescribed R.C.M. 806(a), it’s mindboggling that government officials could think that it’s okay for someone other than the military judge to exclude specific individuals from a court-martial or allow them to attend a court-martial only if they promise not to repeat certain information uttered in open court.  Yet government officials did just that in 2010. 

On 2 June, a reporter from the Fayetteville Observer was excluded from a court-martial session at Fort Bragg in the case of United States v.  SPC Aaron Pernell because the reporter wouldn’t sign a statement agreeing to abide by certain ground rules concerning the reporting of names of alleged victims revealed in open court, as reported by the Fayetteville Observer here.  As the Observer noted:

The Observer’s policy is to not publish names of victims of sexual crimes. But in the Pernell case, not every victim is a sexual assault victim.  The 82nd Airborne Division’s ground rules prohibited naming any of Pernell’s alleged victims, no matter the crime, even though some have testified at a previous hearing.

And anyone who wasn’t a reporter could attend the session without restriction.

The 82nd Airborne Division’s lawyers reportedly backed the decision to exclude the reporter unless he agreed to the ground rules.

Observer reporters covered later sessions in the court-martial, when the ground rules were modified to remove the prohibition against naming victims. 

Then September brought us the case of Martin v. NCIS in the United States District Court for the Southern District of California.  It started out as a case about alleged governmental retaliation against an effective military defense investigator.  But, as civil cases often do, it quickly morphed into something else:  a test of whether there’s any public right to attend a court-martial session.  An Assistant United States Attorney argued the negative.  This North County Times article reported the following exchange between Judge Hayes and an AUSA:

Hayes asked Clukey, who represents the government, what constitutional rights, if any, the public has to attend military court hearings.  Hayes said he wanted to know whether Martin was treated differently than the public in being denied access to the military court system.

“It is certainly a significant issue,” Hayes told Clukey.

Clukey replied that the military has “complete discretion” over how it runs its courts and that the public has no right whatsoever to attend.  She said the public is granted entry by “invitation only.”

The article continued, “Upon further questioning by Hayes, Clukey admitted she didn’t know what the military’s policy is toward public access to its courts.  Hayes set a Tuesday hearing date to give her time to find out.”  And apparently she did.  The government caved.  DOJ sent the plaintiff’s counsel this letter (pasge 4) stating that “MCRD allows members of the public to access its courtroom for open military hearings.  MCRD will allow[the Plaintiff] this same access and she will be treated the same as any other member of the public.” 

And, of course, in May, as discussed by the McClatchy News Service here, the military commission system suffered yet another self-inflicted wound when DOD decided to ban four reporters from covering future military commission proceedings for including in articles purportedly protected information that was already in the public domain.

These incidents reveal the wisdom of R.C.M. 806.  Government officials sometimes succumb to a desire to attempt to control access to judicial proceedings and media coverage of those proceedings.  R.C.M. 806 largely trumps that desire when it comes to courts-martial.

6 Responses to “Top 10 military justice stories of 2010–#7: restrictions on access to military courtrooms [revised — thanks Michael Lowrey]”

  1. Anon says:

    There is still the physical access issue. For example, at our base anyone can come to the courtroom, assuming you know the docket and can get on the base. But once there you have to sign in, get a badge, etc…. While I have been to a fair amount of civilian courtrooms, nobody ever made me sign in, explain why I was there, make me wear a badge, etc… Interesting if some one showed up and said they wanted to watch but didn’t want to explain themselves or give id or wear a badge. 100% positive that person would be barred under a “security” idea at my base.

  2. Michael Lowrey says:

    On Pernell, the answer is further down the article:

    “Later Wednesday, after [82nd Airborne Division spokesman Lt. Col. Dave] Connolly consulted with the 82nd Airborne Division’s lawyers, he said the division’s stance remains that reporters must agree to certain ground rules to gain access to Fort Bragg.

    “Those ground rules are created on a case-by-case basis, he said, and reporters won’t be prohibited from naming victims once Pernell’s court-martial begins Aug. 23.”

    It’s worth noting that the Pernell case was a huge deal in Fayetteville as he was accused of being a serial rapist with victims both on and off base. I doubt the Fayetteville Observer would have folded had the Army persisted.

  3. Dew_Process says:

    One problem that I encountered frequently – and this is strictly anecdotal – is that unless senior SJA’s come from a military justice billet, they probably haven’t looked at a MCM in years and just “wing” things like this. Gaining access to a “closed” military base is one thing, but in the case of bona fide Reporters with credentials, that’s a job for the PAO’s office, not SJA’s.

    It also demonstrates a lack of understanding with regards to “prior restraint” and the First Amendment, not to mention naivete – what’s to stop a DC from giving this information to a “friendly” reporter?

  4. Phil Stackhouse says:

    Same thing is happening at Fort Lewis by the withholding of evidence from the public during an Article 32 hearing – in effect closing the hearing to the public.

    Dan Conway filed a great brief on the issue to ACCA – action was stayed pending the appellate judges review.

  5. Cloudesley Shovell says:

    Seems to me the Military Judge can force compliance with RCM 806 by simply abating the proceedings.

    Whether judges would actually do so, or cave in to hand-waving about “physical security” and what not, I don’t know.

  6. Dew_Process says:

    Admiral, As usual, good point. About 4 years ago, I had a similar situation in an AF espionage case. SJA’s “media rules” were similar to those concocted by Fort Bragg. The MJ, on our Motion, held that if the PAO cleared the Reporters for Base access and gave them Press Passes, they could [space permitting], sit in the courtroom without signing “restrictive covenants.” When the SJA balked at this loss of power, the MJ said she was abating the proceedings to allow us to file a writ. The policy was rescinded that afternoon.