JURIST Guest Columnist Robert Bracknell, a career Marine officer, continues his discussion on ways to reform the military judicial system…

This is the second of a two part series on transparency in military court-martial and attorney/judicial misconduct investigation records. Part I presents the case for transparency in court-martial records equivalent to the federal courts’ PACER electronic records system to increase public understanding of military justice cases and enable the reporting necessary for public oversight of the system. Part II critiques exempting military attorney misconduct and judicial misconduct records; including reports of investigations, findings and sanctions, from being released to the public and advocates for legislative changes that promote regulatory systems similar to those employed by the state bars.

Civic accountability over the legal profession is required in state bar systems. Conversely, attorney misconduct in the military system is shrouded in mystery and obfuscation, with supervising attorneys wielding privacy concerns as a shield against being held publicly accountable for professional performance. In the military system, individual privacy rights trump the public’s ability to ensure the military bar is holding its practitioner’s accountable on a basis similar to the state bars.

One characteristic of a profession (as opposed to a job or a vocation) is its willingness, fitness and ability to regulate itself under a moral code; as well as to demonstrate its self-regulation to the public and to a group of peers within the profession itself. Regulation of professions is designed to protect the public, and accountability within the profession can best be realized by making the results of regulation public. Exposure of regulatory actions allow the market to steer clear of incompetent or unethical professionals, and allows certifying authorities to remove the practitioner’s accreditation to practice within the profession. Public scrutiny of a judge or legal practitioner’s competence, ethics and performance are a required obligation of joining the profession.

State bars make their disciplinary actions public. Public disclosure of professionals who engage in incompetent or unethical practice is simply life in the big leagues. When an attorney accepts a commission as an attorney, he agrees to all the rules accompanying bar membership, including revealing professional discipline in the public record. This is part of the deal society strikes with the bar. In return for the privilege of self-regulating, determining the profession’s own ethical standards and enforcing these standards, the bar agrees to a robust public record of its proceedings. Certain specialized federal bars and other state licensing authorities take similar public enforcement action. Publicly naming violators of the standards of professional conduct signals that the profession takes its ethical and performance obligations seriously, and harnesses the power of peer pressure and the market to drive practitioners toward a high state of competent and ethical practice.

Logically, judicial misconduct investigations mirror the tenets on which attorney misconduct investigation and sanctioning systems are based. Judicial discipline is often public as well, with disclosure policies falling along a gamut of publication options, depending on the jurisdiction or the identity of the investigating and sanctioning body. Like the attorney misconduct process, one common feature of the judicial misconduct investigation and discipline process is that complaints and investigations are private and undisclosed until the complaint has undergone at least some limited fact-finding. This bifurcation helps ensure specious claims from jilted litigants do not unfairly tarnish the reputations of otherwise principled judges. This robust system of judicial accountability instills faith in the third branch, and ensures that the judicial virtues of independence, impartiality and integrity are valued and honored by the judiciary.

No such public disclosure of attorney and judicial misconduct exists under the implementing regulations published by the Judge Advocates General. Shielded by overaggressive interpretations of federal privacy statutes, misconduct proceedings and their outcomes are; quite simply, a giant secret, shrouding systemic transparency behind a thicket of sorcerous obfuscation. Like Oz working the levers behind the curtain, attorney and judicial discipline processes in the armed services amount to an exhortation to simply have faith in a system the public cannot see operating, ostensibly producing results that are never disclosed. Our 40th President unintentionally framed the correct approach to this issue when discussing the signing of the Intermediate Nuclear Forces (INF) treaty at a joint press conference with Mikhail Gorbachev in December, 1987: Trust, but verify.

Secrecy has a very limited place in mature systems of law. Grand jury proceedings and deliberations are secret for good reason: protecting grand jurors, witnesses and evidence from being influenced or tampered with by people being investigated, preventing the targets of grand jury investigations from fleeing arrest and preventing damage to the reputation of persons being investigated on whom no true bill is returned. However, when they produce public indictments these indictments are placed at the public’s disposal through PACER almost immediately after their filing with the court asserting jurisdiction.

Similarly, certain criminal proceedings can be closed in narrow circumstances, such as to protect a vulnerable witness or to prevent the public disclosure of classified national security information. These are narrow exceptions to the general rule that the American criminal justice system operate openly, with virtually universal public disclosure of its proceedings and its records. Open trials are a hallmark of the American system that places primacy on the rule of law. The American Revolutionary War was predicated in part on the abuse of judicial power through nonpublic trials where a person had no reasonable opportunity to defend themselves.

Opponents of transparency in judicial files and attorney and judicial misconduct records will interpose the straw man of federal privacy laws regarding disclosure. However, the Privacy Act of 1974 was never intended to prevent the disclosure of judicial records. It could easily be amended to emphasize that records of attorney and judicial misconduct shall be public, and not subject to withholding as personnel records or some similar non-sequitur, under the shield of the Privacy Act or other privacy-related statutes.

Disclosure of these records publicly – naming and shaming – should be mandatory, in exactly the same way that records of attorney and judicial misconduct and sanctions are available in state civil systems which license attorneys to practice and grant commissions to judges. If a government or military attorney or judge does not want records of his or her professional or judicial misconduct to be made public, there are at least two good options: do not commit professional or judicial misconduct; or do not become a government or military attorney or judge. Making public the professional record of the bar and bench are hallmarks of what makes the law a profession, instead of a mere vocation.

Finally, Congress could prescribe itself an oversight role as a function of its Constitutional authority to “raise and support Armies” and “to provide and maintain a Navy”, and to “make Rules for the Government and Regulation of the land and naval Forces.” Specifically, Congress could require that each service submit a report annually of all professional and judicial misconduct complaints, documentation of the investigations of the complaints, and an account of their resolutions. Jurisdiction could be shared between committees that have significant interests in the administration of justice and the proper administration of the armed services, including the Armed Services, Judiciary and Oversight Committees of each house. Oversight works, inspiring compliance in self-protective and non-responsive bureaucracies. Prescribing a regime of actual accountability instead of the paper tiger system now in place could be a huge step in reforming the practice of military justice in the services.

Congress is the only institution in the position to enact meaningful reforms. Continued calls for the Department of Defense to fix itself are likely to be met with the same frustrating responses that have recently damaged the system’s reputation and functioning. Mandating an open, affirmative disclosure and oversight regime for court-martial records including military professional misconduct complaints and findings would allow the public a direct line of sight into the military justice system. Increased transparency and scrutiny of military justice practices by the free flow of information from military courts to the public would mirror federal judicial best practices, promote better advocacy and judicial decision making, highlight military justice system successes, ensure accountability for system failures, affirm the public’s faith that their sons and daughters are being treated with fairness and justice and could restore service member confidence in military justice.

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 II, JURIST- Professional Commentary, Sep. 24, 2014, http://jurist.org/professional/2014/09/robert-bracknell-transparency-court2.