As I noted earlier today, I submitted a FOIA request to Navy OJAG a week ago seeking the appellate briefs from United States v. Sayler.  Today I heard from four different people from Navy OJAG, all of whom were extremely helpful and kind.  It turns out that the link for submitting FOIA requests that was on the Navy OJAG web page (which was the link I used to submit my FOIA request) led to a black hole.  That problem has now been flagged and, I’m told, is being fixed.

So that lends more support to Zack’s point that the public won’t be well-informed about military justice matters if FOIA is the vehicle through which information is released to the public.  But, because our readership includes folks at Navy OJAG, I now have copies of the briefs that I had sought.  Here’s a link to the appellant’s brief in Salyer, here’s a link to the government’s brief, and here’s a link to the appellant’s reply brief.

Of course, not everyone is lucky enough to have folks at Navy OJAG read his or her whiney blog posts.  If the military justice system wants to be transparent — or at least as transparent as Article III courts — its appellate courts should join the PACER system.

9 Responses to “FOIA and Salyer”

  1. Phil Cave says:

    There’s that echo chamber sound again — are they on PACER.

  2. ConLaw says:

    Should go beyond PACER and publish everything online.  This is the only court system that is (except for the odd civilian counsel) 100% publicly funded on all sides, meaning it should be the most, and certainly not the least, accessible to the public.

  3. Zachary Spilman says:

    This is really just too much.

    First, the good folks at Navy OJAG deserve credit for responding. Particularly since they made a substantive response by producing the requested material in short-order (once advised of the problem). Thank you.

    But anyone who thinks FOIA is a viable method for access (I’m talking to you, Army Appellate Government Division), needs to think long and hard about this experience. In the oral argument of CCA v. US & COL Lind, part of the Government’s argument was that the petitioners didn’t ask the right people for the documents they sought – the right people being the FOIA release authority whose name and contact information is posted on the internet.

    The petitioners in CCA v. US & COL Lind are just plain old-fashioned civilians (with a litigation budget). Col Sullivan is both a senior Marine Corps judge advocate and an appellate defense counsel. If Col Sullivan has trouble getting documents, that’s a sign that the process is badly broken.

    The fix is going to be more complicated than just “publish[ing] everything online.” For starters, there are things that none of us want published online (like the document from the military judge’s service record at issue in Salyer). There’s also that federal privacy statute. Equally important is the question of where these documents get published (who controls the OJAG website anyway). And how they get digitized in the first place.

    PACER is an affordable option (that has been priced, and is an infinitely smarter solution than throwing money we don’t have at a “document management software” provider), but it involves changing business practices in a way that requires some deep thought and field work by Headquarters before the good-idea fairy starts writing policy.

    Yes, really; deep thought and field work by Headquarters before making a policy change. No, I’m not kidding. Lots of people are producing and working with these documents for a living. Anyone who wants to change how that’s done better be very smart, very experienced, very sensitive to the needs of the end-users, and technically savvy enough to avoid the mistakes of the recent past.

  4. Cloudesley Shovell says:

    Several years ago a certain division within the JAG organizational structure of one of the services did considerable legwork on getting the military courts on PACER or a similar open system.  Senior leaders were briefed, etc.  The idea died.   I am not privy to all the facts, but I seem to recall that “not invented here” was a major factor. 
    I will disagree slightly with ZS.  I don’t think making briefs and court opinions and orders publicly available is a giant step requiring deep thoughts.  CAAF has been doing it for years and I see no reason why the service courts could not flatter CAAF with some imitation. 
    Digitizing everything, ROTs, etc., is indeed a larger step and I agree with ZS there that doing it right from the start is important.  That being said, it would be tough to create a system for handling cases and records more haphazard and prone to error than that which exists right now.

  5. Mike "No Man" Navarre says:

    Until there is a unified CCA for all services (with judges from each branch), I don; think this investment makes any sense given the fiscal constratints currently on the military.  Now unifying the CCAs in one of the newly renovated courthouses, that is an idea that is long overdue–see here, here, and here.

  6. Dew_Process says:

    I agree with the above comments on transparency – without it, the appearance of a modern day “Star Chamber” is easily foreseeable.

    But, substantively, after reading the Briefs, I am even more disgusted than I originally was. [As an aside, the Appellant’s Reply Brief is a masterful example of what a Reply Brief is all about].  The ethical issues need to be addressed if for no other reason than to resolve them by the respective State Bars of those involved, because the unfortunate reality is, the military system will either sweep it under the rug or apply the “boys will be boys” rule.

  7. Phil Cave says:

    Echo DP.

    LOL, no ROTFL, “This was not actual command influence; the OIC was not attempting to influence or impact the proceeding.  (R. 415.) )”

  8. Bill C says:

    He wasn’t, Phil.  He just happened to be curious as to the judge’s past.  Nothing sinister in that at all. 

  9. Phil Cave says: