Tuesday, August 21, 2007


The Summer issue of The News Media & The Law (the Reporters Committee for Freedom of the Press's quarterly magazine), includes a very interesting article about NIMJ's so-far unsuccessful attempt to pry court-martial docket information loose from the various services. Nathan Winegar, Open to Those in the Know, News Media & the Law, Summer 2007, at 21. The Coast Guard agreed to provide information about the 2.3 cases it tries each year, but the article reports that the Army, Air Force, Navy, and Marine Corps sent NIMJ a joint letter declining to participate. According to the article, the joint letter "identified various interests at play, including 'protecting individuals accused of offenses,' 'improper publicity,' 'discipline,' and 'the need for transparency and public understanding of the military justice system.'" The letter continued, "Striking this necessary and delicate balance requires the exercise of sound judgment by the commanders responsible for both administering military justice and providing information to the public and the media."

[The Summer issue isn't up on the publication's web site yet. Perhaps it will be up soon.]

Now NIMJ is attempting to go over the Pentagon's head. This message is now scrolling across NIMJ's web home page: "Journalists and Counsel: Please provide timely docket information regarding upcoming courts-martial in support of an NIMJ pilot database modeled on the Canadian open docket system. E-mail your docket information to nimj@wcl.american.edu. Thank you."


Anonymous said...

It'll be interesting to see what the media's gripe is. All the cases pending in the Western Circuit of the Navy-Marine Corps Trial Judiciary (an AOR roughly including everything south of Canada, north of Mexico, and west of Oklahoma) are publicly available on Camp Pendleton's website under "tenant organizations".

As far as I know, all our other circuits also have their own means of disseminating their dockets publicly. In my experience, the only thing the press has to do to find out what cases are pending is to ask.

CAAFlog said...

Of course, NIMJ did ask and the answer was, roughly speaking, "don't ask."

Anonymous said...

But, then, whom did NIMJ ask? If, based on its posting, it asked DoD/DoN then I think the proper response would've been "don't ask us, go look for yourself." If it was a particular judicial circuit/RLSO/NLSO and the response was "don't ask", then I would've brought the issue to higher authority.

Or, is NIMJ serious about wanting DoD to establish a separate, comprehensive docket of courts-martial, after the Canadian model (en francais, peut-etre)? According to my reading of the Canadian docket, there are about the same number of courts-martial in the whole country this month as our circuit (with three districts) in our circuit might have in a day.

It would also duplicate the work our individual circuits are already doing and which is (or soon could be, if there's a particular problem somewhere) already publicly available. To what end, exactly?

I can't think of any single free site where I can go and find information, for example, on every single case pending in every U.S. district court across the country (PACER would give me pleadings, etc. if I'm willing to pay for them, but I've never seen dockets).

Instead, we either have sites like findlaw that compiless the various court links or we have some of the circuit courts themselves that collect the dockets for their district courts. That's exactly what I believe the Navy/Marine Corps has now. What compelling interest would require the military justice system to do more than what seems to be the standard for Article III courts?

The only possible problem I can imagine is that some of the circuits may be using NKO vice e.g. the JAG public website, but's that's an easy enough fix.

I'm all for public access to information regarding the military justice system, but how about something that really matters. For example, after finding about a court-martial (via PAO/circuit dockets/RLSO/NLSO/counsel...) how would the average member of the press/public actually gain timely access to the courtroom, especially in light of security precautions taken since 9/11? That's a survey I'd like to see conducted.

Or, if NIMJ is really serious about public access, don't you think it's about time for an amendment to RCM 405(h)(3)(even a "but see" to ABC v. Powell would be a start)? And what's with that citation to a 1970 case in the Analysis to the rule, with the comment that the rule "is not intended to express any preference for closed or open hearings"?

Sorry to go on like this, but I think it's a serious issue which NIMJ (despite all its other fine contributions to military justice) doesn't seem to be addressing in a very productive manner.


Gene Fidell said...

The correspondence has been on NIMJ's website for a long time and speaks for itself.

No Man said...

Somebody tell me how to click on Western Judicial Circuit on the Pendleton website? I highlight tenant commands but can't click on any of the pop up menu selections (which does include Western Judicial Circuit). If you need a password to access it I can see NIMJ's gripe.

No Man said...

Ok, not sure how, but I got there. Interesting website and docket (site: http://www.pendleton.usmc.mil/base/judges/sjc.asp and docket: http://www.pendleton.usmc.mil/base/judges/docket114.doc) Fun stuff.

Anonymous said...

Mr. Fidell,

Thanks for reference to NIMJ's letter and DoD's response. Now, I can understand NIMJ's frustration a bit.

As I read it, NIMJ was not asking for DoD to create a site similar to Canada's but simply asking the services to encourage all authorities to make docket information available as most/many(?) already had. I'm not quite sure how DoD interpreted that as a request to create a special database for NIMJ's sole benefit.

But, what has been the response to NIMJ's alternate "bottom up" strategy of obtaining docketing information? I'd hope that the individual judicial circuits/RLSOs/NLSOs, etc. have been more forthcoming.


Kathleen said...

The media has a valid gripe. They cannot get timely, accurate and consistent information. The article that CAAFlog first referenced is published in .pdf format on the NIMJ website with permission from The Reporters Committee for Freedom of the Press. It explains the problem succinctly.

In a nutshell, NIMJ asked for cooperation from all services and all offices to provide timely docket information, since most commands and services do not have publicly accessible websites (using a password to NKO does not count). When approached about creating public websites, the response was generally that DOD did not have enough resources and the public affairs offices are adequate substitutes (which is simply not true, see the article for details). Evidently, however, some commands can make a public website work (Camp Pendleton, for example). But I'm pretty sure that all United States military courts-martial are not being held at Camp Pendleton or at the Western Circuit of the Navy-Marine Corps Trial Judiciary (unless there has been a major consolidation that recenly occurred in the five services).

In order to combat the resources argument, NIMJ attempted to gather the information on its own using the "open" system that seems to be trumpeted by DOD and some of those posting on this website. NIMJ thought it best to see just how open it was firsthand, since NIMJ regularly receives complaints from the press about being given the run-around. So, with all of NIMJ resources (rivaling DOD's, I'm sure) of one full-time staff member and three law students serving as part-time interns, NIMJ undertook the task of testing this "openness" and gathering information to populate a public website that NIMJ began developing with the invaluable assistance of American University's Washington College of Law IT Department. The website was ready to be poplulated, but the results in gathering relevant information were less than stellar, which prompted the letter to each of the JAGs.

Unfortunately, the Beta-test never happened, because NIMJ never had enough current information to make it worthwhile to run. The law students received full, open, and timely (which is crucial in this business) cooperation from only a handful of commands. The students were frequently stonewalled or outright told that the information was "privileged." This experience validated the press's complaints.

In short, some commands have model websites and they should be commended. (i.e. Camp Pendleton's), but many continue to claim courts-martial location and time is privileged. Some commands release information about some courts-martial, but not others. So, there is a disparate and sliding scale of openness. If one is in the Coast Guard or at Camp Pendleton, the public trial right is intact. But if one is tried in the Air Force (anecdotally, the greatest proponent of secrecy), the public trial moves closer to the Chinese model of openness.

If the existence of a trial or hearing is protected or privileged information, but the Manual for Courts-Martial and case law proclaims it is public, then the right is one extended in theory, not practice. This doesn't even touch upon the press's First Amendment right to cover trials. It reminds me of that simple axiom learned in law school, "A right is not much without a remedy."

To date, NIMJ continues to receive many complaints from press members from diverse publications that they are given the run-around in that they are told FOIA applies, they need to go up the chain of command, and they have to frequently threaten to sue or sue to get the information (see, e.g., ABC v. Powell). So, the "media's gripe" is real, current, and persistent.

In short, asking for information doesn't equal getting. And looking for yourself involves a Watergate-type of investigation that many reporters cannot afford to endure. I suppose this is acceptable to many, but to me, it is not a model of openness - not in theory or practice. So we shouldn't pretend that it is. And we can do better.