In late 2015, the Associated Press reported that the military justice system operates without the same “openness designed to provide accountability” to the civilian justice system. Associated Press, “Opaque military justice system shields child sex abuse cases,” 24 Nov 2015. In contrast to civilian proceedings, which are “open to the public, as are court filings, including motions and transcripts,” the AP complained that its access to information from the military justice system requires “many [Freedom of Information Act (FOIA)] requests, appeals and fees, and often months of waiting.” Id.
Shortly after the AP’s report, at least six U.S. Senators, from both major political parties, demanded that the Department of Defense lift the “cloak of secrecy” in military justice. They asserted that the secrecy “calls into question the integrity of the institution and hides the system’s shortcomings.” They also asserted that the military justice system “is rife with bias, lack of transparency and no accountability.” Associated Press, “Senators demand transparency in the military justice system,” 8 Dec 2015. Ann Lopez, “Senators demand reform in handling of military sexual assault cases,” WSHU Public Radio, 25 May 2016.
More than two years later, the allegation of opacity against the military justice system remains, and the assertion that FOIA offers a sufficient means by which the public interest can be vindicated is being challenged in federal district court.
Yale Law School’s Veterans Legal Services Clinic has filed this complaint against the Departments of Defense and Homeland Security in the United States District Court for the District of Connecticut. The complaint is filed on behalf of Protect our Defenders and the Connecticut Veterans Legal Center and asserts that, as to multiple FOIA requests filed since Summer 2017, the respondent Departments have refused to release information about gender disparities in the military justice system.
The plaintiffs complain that their FOIA requests have repeatedly gone unacknowledged and that responses tend to be late and insufficient, when they are provided at all. The complaint further alleges that the respondent Departments regularly make insufficient efforts to search for requested records and do not appropriately handle appeals. For relief, the plaintiffs are asking the district court to compel the respondent Departments to expedite processing of their existing FOIA requests, to answer those requests in a way that complies with FOIA, to waive all FOIA fees, and to pay attorney’s fees.
Back in 2015, on the heels of the AP’s reporting and the expressions of Senatorial outrage, this blog noted, in an article entitled, The perception of opacity in military justice, that:
The military justice system currently relies on the Freedom of Information Act (FOIA) to address redaction and release, protecting the privacy rights of victims, witnesses, and even the accused. That process isn’t fast, but it’s what the law requires.
Further, we noted:
There are good reasons to want greater public access to military justice records. Like any system, there’s still room to improve military justice. But the AP’s claim that the system is “opaque” and “shields child sex abuse cases” is overblown.
Two years later, the assertion that FOIA offers an adequate means of ensuring transparency remains reasonable, at least in theory. But, of course, theory is only as good as practice. The sufficiency of FOIA as a means of meeting the public’s need is, of course, dependent on that construct being executed faithfully.
The complaint filed by Yale’s Veteran’s Legal Services Clinic on behalf of their nonprofit clients invites skepticism as to whether FOIA’s theory is being put to practice in the military justice system. If, two years after initial complaints were made, FOIA is still not allowing the public to readily observe the military justice system, then some other tool may be required.