Saturday, August 16, 2008

Reporters Committee for Freedom of the Press's report on court-martial dockets

The Reporters Committee for Freedom of the Press has released a fascinating white paper, available here, on journalists' access to information about court-martial dockets.

This excerpt will give you a flavor of the report:

Unlike civilian courts, which routinely supply the public with detailed dockets, most military courts release docketing information sporadically at their own self-interested discretion, if at all. This policy of secrecy has frustrated the press in its attempts to report on important military justice proceedings, while enabling some government officials to hide criminal cases that could be embarrassing or damaging to the military. Perhaps most alarmingly, the public has been left critically uninformed as to the competence and fairness of the military justice system.
The report was prepared in conjunction with the Tully Center for Free Speech at Syracuse University. The Tully Center conducted a study in which its researchers contacted 25% of the military installations of each service (excluding the National Guard) seeking schedules for upcoming courts-martial and Article 32s. It found that 57 percent of the installations surveyed provided partial or full information about their court-martial dockets while 37 percent provided no information. (The rest were spread between a couple of categories that appear to boil down to "not applicable.") For Article 32 investigations, 49% of installations provided partial or full information while 45% provided no information.

The Tully Center also breaks the stats down by branch. Which branch do you think was the most forthcoming and which the least? Here they are, from most to least informative: Coast Guard (78%), Army (65%), Air Force (63%), Marine Corps (43%), Navy (42%).

The Reporters Committee white paper calls for either a UCMJ amendment or an RCM change to formalize the release of docket information. Under the proposal, DOD would set up a public interservice web site (presumably also including Coast Guard data) that would list "[e]ach and every military court proceeding" two weeks in advance (or as soon as reasonably possible where two weeks' notice is impossible).

The report concludes:

Regardless of the precise legislative form by which these reforms occur, the most significant characteristic of the reforms must be their standardized, indelible nature. The current system appears to operate at the discretion of individual branch officials, and, in many cases, the discretion of individual military court judges. To provide the American public with a fair and competent military justice system, the new military court docketing system must be operated independently from the whim and motive of individuals and enforceable by law.

NIMJ released this statement endorsing the white paper's proposal that Congress "require DOD to establish a public website in order to provide accurate and timely information to the public and the news media about upcoming courts-martial."


Gene Fidell said...

Due to technical difficulties with the NIMJ website (apparently the result of an internet virus that is making the rounds), the link to NIMJ's statement may not be functional for a day or two. All of us who care deeply about military justice owe the Reporters Committee and the Tully Center a vote of thanks for pursuing the dockets issue and preparing these excellent reports. The DoD TJAGs' joint denial of NIMJ's requests for information from which we could generate an online docket was disappointing because public confidence in the administration of military justice is at least in part a function of transparency. We therefore look forward to working with the Reporters Committee, the Tully Center, and others with an interest to help bring about the needed changes.

John O'Connor said...

I don't think it's a fair characterization to suggest that anyone who "cares deeply about military justice" must therefore endorse the views of this report, or, by implication, that anyone who does not have public court-martial dockets on their list of needed military justice reforms does not "care deeply about military justice."

That mindset veers awfully close to the old tale about elitism where (I think) a Washington Post editor who said that he/she couldn't figure out how Nixon won in 1972 because he/she didn't know a soul who voted for him. couldn't believe that

Anonymous said...

JO'C, turns out that WP reporter was right. Not elitism; criminal president. Nixon, too, liked secrecy. You have both mixed your metaphors and used an analogy that cuts against your argument.

Anonymous said...

JO'C, you evade he report's conclusion with a clever rhetorical evasion (the infamous "not a priority" non-sequiter, which has various permutations, such as "there are other things to worry about," "we have other priorities," etc., used by every politician when he or she has no retort to an argument). So, without evasion, what is the argument against publishing court-martial dockets?

Biff (not legrand) said...

Hey Gene,

I couldn't agree more.

JO'C: I'm not sure the request was that you endorse the views of the Reporters Committee, only that you appreciate their diligence in pursuing the issue. You can thank someone and still disagree with their conclusions.

Having said that, I can't imagine what reasonable objection there would be to publishing docket info in a timely and consistent enough manner that the public can attend. The 1st and 6th Amendments might even require this.

John O'Connor said...

Courts-martial are not standing bodies, and they move in an expedited and unscheduled manner more than civilian court proceedings (and appropriately so). I see little value in adding a layer of bureaucracy that would require publishing court schedules in a manner similar to civilian courts. Courts-martial don't have clerks' offices like regular courts that could take on this responsibility. It also would create a perception issue when court proceedings went off without advance warning, when the usual reason owes to the expeditionary nature of the proceeding. I remember reaching court-martial plea deals and having the accused just show up so we could ask the MJ if he'd take the plea when the scheduled courts were done. And, it's not exactly like all civilian courts bother to make hearing schedules readily available to the general public. I won't identify courts, but I'm sure many on this board can think of them.

As for the Nixon analogy, I knew the subject matter would make someone miss the broader point. The point has nothing to do with Nixon's quality as a candidate, statesman, or human being. The story (which might be apocryphal for all I know) is based on thye undeniably true fact that Nixon won in a landslide, and the speaker in the story was pretty much unable to imagine that anyone would disagree with him/hwer because in his/her insular environment everyone thought alike. The point is that even when I think I'm right on something, it's useful to remember that it's not necessarily true that everyone will agree with me, and I also might be wrong. So it's rarely productive to begin with an assumption that everyone with an informed opinion must feel one way on a particular issue (even when you think you're right on the merits).

Anonymous said...

John o'connor's comment simply reflects intellectual humility. Bravo. I understood the clear meaning of your original post. Would that we had more like you.

Anonymous said...

As a trial counsel, I do not care about the press or their desires. Courts-martial are open to the public and I do not pay attention to who is in the gallery. Civilian Defense counsel often feed info to the press, but only to generate business for themselves, or feed their too-large egos.

Anonymous said...

The WaPo article is precisely what annoys me about journalists and why I will never support a "News-Gathering Priviledge."

The article, and every time something like this occurs, draws the inference that if you can't get access to the information, it must be because the government/service/government official has something nefarious or embarrassing to hide. That is an invalid inference.

Needless to say to a reasonable person, but to, unfortunately, many of the bloggers here, there could be many reasons why you can't get access to the information. Without more, simply being unable to access the information does not reasonably or legitimately infer something bad.

As it relates to CM dockets, it is probably because there has never been a system set up to easily release such information.

The supposed "objective" and "fair" journalist always reports that the lack of access = something bad is being covered up. That is neither fair nor responsible journalism.

I prime example was that incompetent reporter, Andrea Mitchell from the communist network, NBC, making and reporting the basless accusation that McCain heard all of Obama's anwers before that forum this weekend. No, Andrea, it's because your candidate, as it turns out, is incompetent outside of a formal speech forum, for why McCain kicked his arse.

The press is so dishonest, that I frequently question whether its freedom is really a blessing or a curse for this country.

Anonymous said...

8:35 Anon: Civilian counsel are the integrity of the military justice system. Not only is it the service member's right, but most detailed defense counsel are too inexperienced, too afraid of the trial counsel, or totally uncommitted to the client's cause.

Anonymous said...

Civilian counsel is the integrity of the military justice system???? There are just as many civilian DC that hang a shingle w/limited experience as there are inexperienced military counsel. As a DC I was always marginalized until it was time to do the work or the time to take the blame and as a TC I find some civilian DC's unfamiliar with the rules, think the rules don't apply to them b/c of their civilian docket or think they can strong arm (especially inexperienced TC) into a position. I find the statement that civilian counsel is the integrity of the system to be offensive.

Anonymous said...

Civilian counsel are usually a waste of money, particularly for an Accused's parents.