A recent Huffington Post article about the Sinclair case featured this observation:  “The Army has thus far rebuffed public records requests from The Associated Press for copies of all motions filed in the case.”  Why?  Military justice practitioners often liken courts-martial to criminal cases in federal district court.  In such a case, all of the motions would be publicly available through PACER.

In the “moving in the right direction” category, an alert reader let us know that the HQDA FOIA Reading Room webpage now has this link to a “PFC Bradley E. Manning” page, though at the moment it isn’t populated.

7 Responses to “Transparency levels of courts-martial continued”

  1. Zachary Spilman says:

    Military justice practitioners often liken courts-martial to criminal cases in federal district court.

    Indeed. And the recruiting commercials told me that I’d slay dragons.

  2. Cloudesley Shovell says:

    I wonder what the word “rebuffed” means here.  Does it mean that the Army has not yet responded?  Or has acknowledge the request but not released any documents yet? Or does it mean that the Army has actually denied the requests?  If there has been a denial, has the AP appealed?  The phrasing is awfully vague.  If there has been a denial, I wonder what the basis could possible be?
     
    I cannot conceive how any court-martial document could possibly be anything other that a public document that is immediately releasable upon request, or simply posted online.  The only exception would be classified documents or where the judge imposes restrictions based upon well-settled law regarding withholding court documents from the public.
     
    CS

  3. Zachary Spilman says:

    I cannot conceive how any court-martial document could possibly be anything other that a public document that is immediately releasable upon request, or simply posted online.

    Privacy Act. Too much PII in the typical trial-stage pleading. Hence my comment to the JSC to create a new RCM (not discussed on CAAFlog, other than a mention here).

  4. Cloudesley Shovell says:

    ZS-so what about documents posted on Pacer in federal courts?  Briefs at CAAF?  How long can it possibly take to redact these documents?  Asobe Acrobat has a pretty slick redaction tool that makes redacting documents childishly simple.  Shouldn’t take but a few hours at most to redact the whole collection of motions.
     
    Regards,
    CS

  5. Zachary Spilman says:

    Does the Privacy Act apply to the Article 3 courts? I don’t think it does…

    But the issue is one of revising existing regulations and policies to reflect the ability to provide greater transparency at marginal cost via technology. And I think it’s already happening. Heck, we’ve been following this issue very closely in the CCR, et al. v. US & Col Lind case.

    Here’s an excerpt from my comment, linked above:

    3. Limit the Use of Personal Identifiers.
    The use of certain personal information, such as social security numbers, the names of minors, dates of birth, financial account numbers, and home addresses is unnecessary to the administration of military justice and risks misuse of this information for improper purposes. Accordingly, the creation of a new rule for courts-martial, perhaps at the end of Chapter I, to restrict the use of this data is advisable. The following text of a proposed rule is respectfully forwarded:

    Rule 110. Use of personal information.
    All parties shall refrain from including, and shall redact as necessary, the following personal information from the charge sheet, allied papers, pleadings, exhibits, and other documents attached to the record of trial: social security numbers or any portion thereof, the names of minors, dates of birth, financial account numbers, and home addresses. Where omission or redaction would prejudice a party, the military judge may order sealed any such matters or order other appropriate relief.

    4. Consider Rules to Address Contemporaneous Public Access to Court-Martial Documents.
    The extent of the right of the public to contemporaneous access to trial-stage court-martial documents is a matter of ongoing dispute. Generally, members of the public must submit a request pursuant to the Freedom of Information Act (5 U.S.C. § 552) in order to obtain trial-stage materials. Fulfilling such a request often requires a lengthy review and release process that needlessly encumbers the public’s right of access to these materials.

    Notably, the Court of Appeals for the Armed Forces and (to a lesser extent) the Army Court of Criminal Appeals both provide public access to appellate-stage documents through their websites, facilitating a wide variety of valuable commentary and analysis by both practitioners and members of the public.

    The Joint Service Committee on Military Justice should explore the development of rules to enable greater public access to court-martial documents at all stages. In addition to a rule limiting the use of personal identifiers (discussed above), other rules could streamline the application of the Freedom of Information Act to court-martial documents, could reduce or eliminate fees for documents in courts-martial that are not yet final (particularly where documents are provided electronically), and could define the authority of personnel detailed to a particular court-martial to release documents themselves. Additionally, the Joint Service Committee could establish, or appoint an executive agent to establish, a joint system to enable public access to court-martial documents similar to the Public Access to Court Electronic Records (PACER) service employed by the U.S. Courts.

    Were the Joint Service Committee to hold public hearings to address the public’s right to contemporaneous access to trial-stage court-martial documents, and to consider techniques to ensure the same, such hearings would likely attract a wide variety of insightful comments. Accordingly, it is respectfully recommended that the Joint Service Committee consider holding such hearings at a future date.

  6. Cloudesley Shovell says:

    ZS- You are absolutely right, my error, the Privacy Act applies only to agencies, and Art. III courts are not agencies.  But CAAF, an Article I court and thus part of an agency, publishes briefs online.  There is no reason why trial-level courts-martial cannot do the same.  It’s simply inexcusable for the Army to not release the court documents under FOIA.

  7. Lieber says:

    CS:  the Privacy Act is a real issue.  the Army Jag Corps, at least, is still using circa 1998 information technology, we’re also way short on personnel and sequestration is making it worse.  Simply don’t have the tools or personnel to redact, scan and publish all courts-martial docs.