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.

12 Responses to “Scholarship Saturday: A federal case against an opaque military justice system”

  1. Scott says:

    “Service members still face substantial de facto barriers to full and equal participation predicated on . . . disability . . .”
    Can’t argue with the logic there.

  2. Ed says:

    Transparency would be great. It would make it clear to intelligent members of the public how skewed against alleged perpetrator’s the system is skewed. Bring it on Yale

  3. Former DC says:

    This would seem to come under the heading of “self-inflicted wound”.

  4. DCGoneGalt says:

    I have filed one court-martial FOIA request.  I gave up after several months of being directed to re-file it elsewhere and being told to request the information from several separate sub-agencies.  I think the entire point of the government response was designed to cause the requester to quit.  It worked.  Fighting a bureaucracy as vindictive, stupid like a fox, and rich as the federal government is a full-time job and I didn’t have the time or patience.

  5. Former. says:

    DCGoneGalt – What year/service was your request?  I briefly worked in flawed FOIA bureaucracy, signed off on many releases, and saw a few improvements in the last few years.  Complaints about vindictive, stupid, and rich gov’t don’t ring true in general, though obviously there are exceptions.
    I do recall a media requester (perhaps even Mr. Lardner) griping about military justice files in comparison to materials available on Pacer.  However, live convicts do still maintain some privacy interest, especially over investigative details which are not pled or proven in court.  Legislators and writers with voracious appetites for salacious details which don’t survive a prosecution, don’t deserve much sympathy.

  6. Vulture says:

    How long has the ACCA website been down?  There are other means to request certain documents, such as promotion consideration lists, but in general, the Government openness leaves much to be desired.

  7. Zachary D Spilman says:

    In Section 5504 of the Military Justice Act of 2016, Congress created a new Article 140a that states:

    Art. 140a. Case management; data collection and accessibility

    The Secretary of Defense shall prescribe uniform standards and criteria for conduct of each of the following functions at all stages of the military justice system, including pretrial, trial, post-trial, and appellate processes, using, insofar as practicable, the best practices of Federal and State courts:

    (1) Collection and analysis of data concerning substantive offenses and procedural matters in a manner that facilitates case management and decision making within the military justice system, and that enhances the quality of periodic reviews under section 946 of this title (article 146).

    (2) Case processing and management.

    (3) Timely, efficient, and accurate production and distribution of records of trial within the military justice system.

    (4) Facilitation of access to docket information, filings, and records, taking into consideration restrictions appropriate to judicial proceedings and military records.

    (emphasis added). There is, however, a four-year delay (three years now) before this new Article takes effect.

  8. DCGoneGalt says:

    Former:  The year was 2013.  The case an Art 120 GCM acquittal.  The request, the ROT and all investigative and other documents in the possession of the government.  The final response from the installation FOIA, was that the documents belonged to AFOSI and I would have to request it from them . . . if they weren’t exempt from disclosure.  Thought about suing but I have a life and there’s only so much free time in my day.  The experience reminded me of dealing with the DMV, except less timely.

  9. Tami a/k/a Princess Leia says:

    With FOIA requests, since criminal investigation records are maintained by the criminal investigative agency and not the JAG office, the request has to be referred to the criminal investigative agency for a determination as to whether the record will be released.  Which it won’t because the agency doesn’t want the public to see what a bad, biased job it did investigating it.  So they will use their Exemption 7 to the max.  FOIA itself needs to be changed to increase transparency. 

  10. Allan says:

    I have a thought.  How about a simple bill: “a conviction at a court martial is not a criminal conviction for any purpose outside of the military”?  This would allow the military to focus on the primary reason for military justice, good order and discipline, and leave decisions on criminal conduct to the civilian courts. 

  11. Tom Booker says:

    Here’s a thought for the media:  Show up.  I realize that access to bases is not as easy as it once was, and I also realize that dockets are hard to find on line, but show up, for crying out loud.  The accused at a court-martial has the same public-trial right as the defendant in a U.S. District Court.
    And not to belabor the obvious, but Congress did make the Freedom of Information and Privacy Acts applicable to all portions of the Executive Branch.  The Judicial Branch does not have such strictures or faucets.
    Respectfully, LTB

  12. Isaac Kennen says:

    Building off of Tom Booker’s point: It has become fairly common for military installations to contract with their local county/parish/borough for confinement purposes. Could they not contract with the county/parish/borough to hold courts-martial in their courthouses as well? It would probably be cheaper to do so given that military trial practice is ad hoc and irregular in nature. It also seems that access would be easier for the public if courts-martial were held in a place where the public knows trial activity is going on, and where the public knows they are permitted access to those trials. The media is accustomed to covering courthouses, it is not accustomed to trying to figure out which installation is having a trial on which day, and then navigating the bureaucratic mess that is involved with gaining access to a military installation, finding the courthouse on that installation, and gaining access to courtrooms that are often located inside of secured facilities that exist for other purposes. Having separate military judicial facilities seems like a luxury rather than a bona fide necessity. In our fiscally constrained atmosphere, perhaps luxuries are indefensible.