JURIST Guest Columnist Robert Bracknell, a career Marine officer, discusses ways to reform the military judicial system…

For the past several years, the Department of Defense and the armed services have been thrashed by the media, victim interest groups, the civilian and military bars and Congress over military justice issues. Accusations of systemic flaws, cultural indifference and enmity toward alleged victims and commanders turning a blind eye to sexual assault accusations has ratcheted the debate in the administration and Congress to a strident cacophony. Concepts on reform and oversight have bounced from interest groups to the Hill to the White House to the Pentagon and back. Some reform proposals have attained administrative and legislative traction, while others have fallen by the wayside.

Disappointingly, two simple reforms that could transform the landscape of military justice have been wholly overlooked. This is the first of a two-part series addressing each of these issues, advocating modest, affordable, easy to implement reforms that would improve transparency and public accountability for the military justice process. First, Congress must amend the Uniform Code of Military Justice (UCMJ) to mandate real-time, open access to paper and electronic court-martial records. The legislation should direct open access through PACER or some other electronic online system on the same basis and availability as the records of Article III courts—without a requirement to wield the Freedom of Information Act (FOIA) to gain access to military judicial records. Second, Congress should mandate unrestricted access to records of attorney and judicial misconduct on the same basis as the professional standard set by most state bars and judicial codes of conduct.

The past few years have been simply dreadful for military justice, particularly the management of sexual assault investigations and prosecutions, legislative hearings and several UCMJ reform bills. The Air Force ended the careers of two three-star generals, including at least one who was a shoo-in for four stars, over their perfectly lawful exercise of clemency in sexual assault cases. The Army tried a brigadier general by court-martial (culminating in a plea agreement that ended this rising star’s career), recently relieved a general officer commander in Japan for suppressing sexual assault investigations and has a sexual assault case pending against a sexual assault prosecutor.

The Navy suffered through the high-profile investigation and prosecution of three Naval Academy midshipmen. The Marine Corps has suffered humiliating appellate defeats pertaining to unlawful command influence, post-trial delay and right to counsel and a scathing assessment by a US district judge of the handling of a routine military justice case that landed in federal court due to Marine prosecutorial incompetence. The Corps also has been at the receiving end of an embarrassing civil action by two female officers and alleged rape victims suing the service and the Department of the Navy over its alleged inability to protect them from sexual assault. Sexual assault reports climbed yet another 50% in 2013.

The anecdotes and metrics at least suggest a problem in culture, legal and command competence and ethics and senior leadership. But the opaqueness of the military justice system itself is one very important aspect of the wider institutional failure. Military leaders have been embattled, struggling to explain themselves to the Secretary of Defense, the President and issue leaders in both houses of Congress, particularly Senators Kirsten Gillibrand and Claire McCaskill and Representative Jackie Speier. Senator McCaskill was successful in sponsoring and orchestrating passage of military sexual assault reform legislation requiring significant changes to sexual assault investigation and prosecution.

More reforms are in the offing even though a clear preference for the status quo remains within the Department of Defense, illustrated by a recommendation by the Response Systems to Adult Sexual Assault Crimes Panel to maintain commander’s convening authority and keep prosecutorial organizations within the military chain of command. Despite being on notice of a perceived problem in military justice, particularly in the handling of sexual assault cases, it took congressional interest and action to energize the Department of Defense sufficiently to move beyond inertial intransigence to take the issue seriously, causing one service chief to describe it stunningly as his “number one priority” above war-fighting, recruiting, training, retaining and equipping the force, doctrine development and care for returning wounded veterans. The political forces swirling around this issue have been breathtaking.

Despite the blinding flurry of military, executive, legislative, judicial and special interest group activity, the stubborn opacity of the military justice system with regard to judicial records and attorney and judicial misconduct has received absolutely no attention as an inexpensive, immediate, viable avenue for reform with clear merit well in excess of the systemic cost of implementation. The Department of Defense and the military services have failed completely to recognize the important potential effect of increased transparency and low implementation cost of this vital reform.

Transparency is a cornerstone of accountable government, including a valid, credible judicial system. The President’s Transparency and Open Government Memorandum [PDF] of January 26, 2009, notes:

Government should be transparent. Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public. Executive departments and agencies should also solicit public feedback to identify information of greatest use to the public.

Any involved party has a substantial interest in access to records reflecting how the courts are operating and whether those courts are regular civilian courts (state courts of general jurisdiction or federal “Article III” courts) or military courts-martial. Similarly, virtually every state system of attorney and judicial discipline publishes the records of their findings so that the public and consumers of attorneys’ professional services can have access to data in the information marketplace that will inform their decision-making on issues of attorney and judicial competence.

Open judicial records and public records of attorney and judicial discipline ensure that the public, aided by the democratic legislative and executive rulemaking processes, can monitor the system and refine it to balance the government’s interests in accountability and deterrence with the public’s and accused service-members’ interests in fairness and justice. An open judicial system, including access to records of professional misconduct, even in the military, is a hallmark of a progressive system of government that places individual rights on par with the power of the government.

The military justice system is unique in its lack of transparency among systems of American law. Federal courts of course use PACER, facilitating near-instant access to court records, orders, motions, filings and petitions. State systems have implemented electronic records systems and also generally allow individuals to show up at a courthouse unannounced, pay a fee and photocopy public, unsealed judicial records. The federal and state trial and appellate courts take seriously their obligation to provide transparency in the judicial system, withholding information from the public only in very narrow circumstances subject to special justifications. These limited exceptions include classified information, cases involving minors or protected witnesses, qui tam actions (sealed in cases brought under the False Claims Act to protect the government’s ability to intervene in select cases) and cases involving confidential business information or settlement agreements.

This value of transparency has been mostly embraced by the Department of Defense in the context of the military commissions system, with every single unclassified filing, ruling, motion, response and exhibit available on the Commissions website within days of its filing with the court clerk. By contrast, transparency not only is absent in the military justice system applicable to American service-members—in fact, it is sometimes deliberately thwarted. Why should the Department of Defense make a deliberate choice to open the Commissions—the forum trying the worst alleged terrorists in history—to the world, but hide American military justice responsible for applying the Constitution to America’s sons and daughters behind an ominous veil of secrecy and non-disclosure? Alleged terrorists get more transparency and publicly open judicial procedure than active duty service-members subject to the UCMJ.

In stark contrast, absent a change in the law requiring affirmative disclosure of military legal records (e.g. motions, responses, judicial orders, records of trial and other court-martial records), the only way to obtain them is through FOIA. FOIA, as implemented by DoD, of course permits the government days, sometimes weeks, of delay to respond and requires individual requests for each record sought to be disclosed. Moreover, a requester has to be aware of the existence of the records to begin with.

Consider for example a media requester who wants to report on a sexual assault case at Fort Lewis. The requester would have to know of the existence of the case, file FOIA requests and await the government’s response for 10 days or longer whereas a similarly situated justice beat reporter in virtually any city, county or federal district in America simply reads the published court docket for newsworthy cases and requests copies of judicial filings from the clerk or downloads them from PACER. The delayed disclosure occasioned by leveraging FOIA to obtain military justice records postpones reporting on the case to the point that it diminishes its newsworthiness.

The end result is that ironically, rather than promoting transparency in the military justice context, FOIA actually works to constrain it. Slow-rolling disclosure is likely a desirable outcome from the military bureaucracy’s perspective but it is manifestly not in the public interest—nor ultimately in the long run, the military’s own interest. Public scrutiny can be invaluable to shaping the law to fit the public’s expectations about how military members should be governed and disciplined.

That is not the status quo with Article III judicial records, the closest analogue to military justice records. Every individual Article III court record is available to anyone who looks into PACER within hours of its filing and acceptance or issuance by a court. The affirmative disclosure regime established by the federal courts through PACER provides near-instant transparency into the federal judicial system. The media, Congress, the executive, the public, activists, business and the academy—law professors, economists and historians—have immediate access to court records for reporting, analysis and decision-making.

This immediacy serves the public interest. An unsuccessful motion to dismiss charges against a stockbroker for wire fraud can be immediately available to traders, attorneys and economists, which allows the market to reflect the news accurately and promptly. The availability of an indictment against a political figure gives the public important information on how to make political choices such as voting or making political contributions. These are important functions in our democracy and judicial transparency helps perfect the available information on which society makes decisions.

Whereas the media can utilize PACER to drive public awareness of federal judicial proceedings, covering military cases is an order of magnitude more difficult—and not only because the proceedings take place on military installations that may not even be accessible by the public. In addition to the requirement to request records and the delay, the government often does not meet the timelines for production of records mandated by the statute and frequently drags its feet and unlawfully withholds or redacts records through misapplication of FOIA’s legal standards. A statutory requirement to post all records applying the same standards of redaction as exist in PACER would aid public understanding of the military justice system and would promote better trial practice because every proceeding would potentially be on stage and covered in the evening news or the next day’s newspapers.

Transparency in court-martial records driven by a change in the law requiring military judicial circuits to post them into PACER on the same basis as Article III courts would work wonders for the challenges facing the court-martial process and military justice. The media would be able to report on cases faster, more accurately and more often, enabling transparent, accurate information to flow to the public in near real-time. Moreover it would allow reporting from a distance; reporters across the country would have online access to electronic records to augment wire reports in their reporting.

Improving access to information can lead to greater political and supervisory accountability for military justice decisions and outcomes and can help shape the debate regarding military justice in terms of expanding or contracting the rights of the accused, refining offenses and changing judicial procedures for greater efficiency and effectiveness. This is a simple, affordable reform for which there is already a proven model or platform—PACER—that would work wonders with respect to public and media access to military justice case information.

NOTE: The opinions herein are the author’s own and do not reflect the position of the US government or of any other organization.

Robert Bracknell is a career Marine officer and is a member of the Defense Council for the Truman National Security Project.

Suggested citation: Robert Bracknell, The Man Behind the Curtain: Mandating Transparency in Court-Martial Records and Professional and Judicial Misconduct Investigations and Findings – Part I, JURIST- Hotline, Sep. 16, 2014, http://jurist.org/hotline/2014/09/butch-bracknell-transparency-court.php