Transparency In Military Justice: Lessons Learned From The NIMJ Conference
The National Institute of Military Justice (NIMJ) is a nonprofit organization dedicated to military justice reform. Steph has the honor to serve as a Fellow at the NIMJ. The NIMJ held a conference in Washington D.C. on October 6, 2023, focused on transparency in the military justice system. Panels at the conference included legal scholars, military justice experts, journalists, policymakers, and 1st Amendment lawyers. Abby represented KMD at the conference. Multiple insights emerged from the discussion amongst the experts in attendance.
The Importance of Transparency in the Justice System
Transparency lies at the very core of a fair justice system. Transparency is necessary to ensure the players in the process – lawyers, judges, juries, law enforcement, commanders – are held accountable for their decisions. The source of this accountability is the public who, with the help of the press, determines whether the justice system is fair. The public’s trust and confidence in the justice system hinges on the public’s ability to evaluate whether the system is fulfilling its purpose of dispensing justice for the military, crime victims, and the accused.
An example of the connection between transparency and the confidence in the justice system is former-President Donald Trump’s trial in Fulton County, Georgia. The judge in that case ruled that all court proceedings related to the case will be streamed live to the general public. This tremendous level of transparency will allow the world to see the trial procedure, evidence, and witness testimony. Members of the public can then determine whether the verdict is arrived at fairly. It is not hard to imagine the upheaval that would result if the former president was found guilty of the charges in a closed trial, where the public was not allowed to see what led to that outcome.
The Lack of Transparency in Military Justice
Despite the importance of transparency in the justice system, the military justice system is notorious for a lack of transparency. First, lack of transparency in the military justice system is real and pervasive. One journalist described writing stories on military justice “like being in a foreign country” and talked about how most courts-martial happen on military bases. Civilian journalists must request access to the base, and when they are granted access, a member of Public Affairs is typically assigned to stick close to them until they leave.
Military members are either directly told not to talk to journalists or indirectly intimidated out of doing so through fear of reprisal, so gathering information can be difficult for a journalist. The feeling of being a “foreigner” is sometimes amplified by a journalist not speaking the language of the military, with all its acronyms and unique terms. As a result, it can be difficult for journalists to gather the information needed to create transparency.
Every journalist at the conference bemoaned the difficulty of getting documents from the DoD. A common issue was the difficulty in figuring out what records existed, what to request, and who to request it from. Requests for records often go unanswered for long periods of time, making it difficult to complete a story within the fast-moving news cycle. When the DoD does answer the requests, the response is often incomplete or a pile of heavily redacted documents that does little to answer a journalist’s inquiry.
If the civilian court system can be transparent, the military justice system can be, too.
Journalists contrasted the military justice system’s approach with the federal civilian courts’ PACER system. Civilian federal courts require all documents in a case to be uploaded into PACER, an online system available to the public. Members of the public and the press can then see the documents associated in the case by accessing the system and finding the case of interest.
This comparison between PACER and the shroud often employed by the military highlighted not only the military system’s lack of public access but also the lack of justification for its lack of access. If the federal court system, which is a much larger court system with an exponentially higher volume of cases than the military, can make its filings available to the public, the military certainly is capable of it as well.
Courts-Martial offer a glimpse of transparency, but more can be done.
While courts-martial are a welcome peek behind the military justice curtain because the press/public is generally permitted to view an entire court-martial, there are still significant flaws in transparency even in the court process. Documentary evidence is not normally provided to the press or the public, so attending the trial in person does not result in seeing all the evidence. And while the entire court-martial is recorded by the court reporter, press requests for the recording are almost always denied. While courts-martial are public hearings that offer transparency, they still do not provide the public a full view of a case.
The lack of transparency in nonjudicial punishment leaves the process open to abuse.
The hurdles to transparency in the court-martial process pale in comparison to the lack of transparency in administrative processes, such as nonjudicial punishment/Article 15 proceedings. One journalist called NJP “the black box” of military justice because of the near impossibility of getting any information about nonjudicial punishment actions.
This lack of transparency in the NJP process led many of the journalists on the panel to conclude that abuses in the NJP system are rampant. The perception of NJP caused by, in part, the lack of transparency was that it was an avenue for commanders to unfairly ruin a servicemember’s career or to hide cases when the military wanted to avoid the publicity of a court-martial.
The lack of transparency also hinders the ability of the public and Congress to assess racial disparities in military justice.
This is particularly concerning when, in the Navy, a Sailors is attached to a ship and does not have the right to turn down, or reject, nonjudicial punishment. This is true even when a ship is in the yards and hasn’t been underway or deployed for years. Commanding Officers have essentially unlimited ability to impose nonjudicial punishment on whoever they want, disregard evidence and due process, and dramatically impact a Sailor’s career. The distinction between a Sailor’s rights when they are on a ship vs. on shore duty is completely arbitrary and unnecessary, and the Navy hides data in a way that prevents these injustices from coming to light.
At KMD, we have seen this happen countless times. Our clients’ rights are trampled on by a commanding officer, the client receives NJP, loses rank and pay, and then is sent to an administrative separation board. At the ADSEP board, our client is quickly and easily exonerated by an unbiased panel of members. However, our client still suffers the effects of the imposition of NJP with the only method of redress being at the Board for the Correction of Naval Records, which has extraordinarily high burdens for an applicant to overcome and a notorious pattern of rubber-stamping commanding officers’ decisions.
Effective Ways to Increase Transparency in Military Justice.
After highlighting the military justice system’s many issues with transparency, the conference turned to methods of increasing transparency. A combination of changes to the law, DoD policy, and processes would be necessary, and those would probably have to come through action by Congress. But, as one member of the panel put it, “some issues have a constituency, and some don’t.”
Military justice nerds, journalists, and victims or accused members who had a strongly negative experience in the system, are usually the only people with an interest in changing the military justice system. Lack of public participation or interest in lobbying Congress to demand increased transparency means changes in the law or policy on the matter are unlikely.
NIMJ has successfully achieved more transparency in the military commissions.
However, some progress has been made in the courts using the laws that already exist to force greater transparency in military justice. NIMJ spearheaded a successful effort to increase public access to documents from military commissions. Military commissions are tribunals administered by the Department of Defense that conduct trials of non-U.S. citizens for violations of the laws of war and similar offenses. Currently, military commissions are primarily being used to try prisoners held at Guantanamo Bay for offenses associated with 9/11 and the Global War on Terror.
The Office of Military Commissions maintains a website with the associated documents for each of its cases that is open to the public. The office must conduct a security review for classified or non-publicly releasable material and post the document to the website within 15 days of filing.
However, security reviews were not being conducted anywhere close to 15 days after filing. A review of the website found over 700 documents that had been undergoing security review for longer than 15 business days. Almost 160 documents had been undergoing security review of over three years.
The delay in completing the security review and/or lack of diligence in posting documents severely compromised the transparency of the commissions. The public had no real way to see what was happening at the commissions, whether the rights of prisoners brought before the commissions were being properly respected, and whether the punishments given to convicted members were appropriate.
NIMJ and attorneys from WilmerHale engaged with the Office of Military Commissions to spotlight the huge number of missing documents and the subsequent lack of transparency. The Office of Military Commissions has since updated its website and posted documents in a more timely manner.
At the time of posting, there is an ongoing lawsuit against the Navy to increase transparency.
Kral Military Defense is also currently involved in a lawsuit Pro Publica filed against the Navy after the Navy refused to release records from the USS Bonhomme Richard court-martial. On 12 July 2020, a fire started on the USS Bonhomme Richard while in port at Naval Base San Diego. The fire severely damaged the ship and she had to be scrapped.
The case garnered national attention because the ship cost approximately $750 million to build and scrapping her was a huge loss of taxpayer dollars. The Navy conducted an investigation into the cause of the fire and Seaman Apprentice Ryan Mays was charged with arson and willfully hazarding a vessel. SA Mays was court-martialed in September 2022 and found not guilty of all charges against him.
Pro Publica is non-profit organization that conducts investigative journalism on matters of public interest. Pro Publica had discovered that after the preliminary hearing for the case, a judge opined the Navy was scapegoating SA Mays because of the high-profile nature of the disaster, as there was scant evidence that he committed the crimes alleged. Pro Publica requested the Navy provide it with documents from the court-martial, but the request was denied.
Pro Publica requested the court-martial records so it could report the evidence from SA Mays’ court-martial to the public. Pro Publica’s purpose in seeking the records is to inform the public so it can hold the military justice system accountable. The system needs sufficient transparency so the public can determine whether, for example, the Navy wasted additional taxpayer money in court-martialing SA Mays, or whether the Navy investigation failed to find the person truly responsible.
Pro Publica’s lawsuit against the Navy is still pending with the goal of not only obtaining the court-martial records it requested, but also spotlighting changes in policy that need to occur to bring greater transparency, and ultimately, accountability to military justice.
The Military Justice System Needs More Transparency
It is easy to see why transparency is so crucial to a functioning justice system. The public cannot hold a justice system accountable when it does not know what the system is doing. When the public does know what the justice system is doing and can see outcomes were reached fairly, it creates trust in the system. And naturally, the eye of the public encourages judges, lawyers, jurors, and police officers to carry out their duties properly.
For our clients, we need transparency to ensure the system works in a fair and just manner, from administrative actions, to nonjudicial punishment, through a court-martial. When people in positions of power act without accountability, those actions can have drastic consequences for our clients.
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