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