In a decision on Sept. 12, a federal judge in California ruled that the press and public have a First Amendment right of access to military court proceedings and related records and that “[t]he Government’s policies denied ProPublica’s First Amendment right of access.” This is the first time a federal court has decided the question, although military courts have applied the presumption of access to their proceedings and related records.
The ruling comes nearly three years after ProPublica filed the case against the Navy and Department of Defense in September 2022. ProPublica’s lawsuit originated from a single high-profile arson case in which the Navy refused to release records, but the lawsuit challenged the overall legality of the Navy’s practices and the Pentagon’s guidance, which allows the services to shroud much of the court-martial process in secrecy. “Collectively, the Navy’s policies prevent any meaningful oversight of its court system, including any visibility into how it handles sexual assault cases, a matter of paramount public importance,” ProPublica’s lawsuit stated.
In a 16-page decision, Judge Barry Ted Moskowitz largely sided with ProPublica in finding that the right of access applies to courts-martial and preliminary proceedings and related records, although he also concluded that the government was not required to provide access “contemporaneously” when records are filed, citing “statutory, national security, and other valid exceptions” that might warrant withholding certain records. The court said the government could release court papers 30 days after a trial record is certified, though that certification process can take up to 120 days or even more in some cases, according to the government’s witness, Capt. Chad Temple. That means court records could be withheld while the case is occurring and most newsworthy.
“The ruling is an important win for transparency and the public’s right to know,” said ProPublica’s counsel, Michael Dore of Gibson, Dunn & Crutcher LLP. “The Court made clear that there is a First Amendment right of access to military court proceedings and records, and held unequivocally that the government’s policies denied that right. A true right of access to court records and proceedings requires timely access, which we hope to address with the court at the upcoming status hearing.”
The judge rejected the government’s argument that the court could not decide the case because it concerned a political question. The judge also rejected the government’s argument that ProPublica’s claim for notice of preliminary hearings was moot because the government started providing some notice of hearings after it was sued. The court found that the government had failed to show that it would not revert to denying notice in the future.
The judge agreed with ProPublica that there is a presumption of public access to preliminary hearings in military courts, explaining that they are “strikingly similar” to preliminary hearings in civilian criminal courts that are subject to public access, and concluding that the Navy’s practice of withholding all evidence including exhibits is impermissible. The court also rejected the Navy’s practice of withholding all records in cases ending in acquittals, concluding that this “runs afoul of the First Amendment.”
Last fall, the Navy began providing public notice of preliminary hearings known as Article 32 hearings, after ProPublica’s lawsuit challenged the Navy’s practice of withholding this information. DOD general counsel Caroline Krass issued guidance in January requiring the military to give at least three days’ notice of these hearings in its courts. Moskowitz held that three days was not sufficient notice to enable members of the press and public to attend the hearings and required the government to provide 10 days’ notice.
ProPublica had asked the court to order the secretary of defense to issue proper rules for the release of records and other key information, such as hearing schedules, as required by a federal law passed in 2016. Although Moskowitz had previously allowed this claim to proceed, he denied the claim on Friday, finding that the secretary’s duties are “imprecise and subject to discretion” and that he had already granted ProPublica the other relief requested, so relief on this claim was unnecessary.
The judge ordered the parties to submit proposed language for a final order in two weeks and to have a status hearing on Sept. 29.
The government declined to comment on the court’s decision.
ProPublica is represented in the suit by its deputy general counsel, Sarah Matthews, and by pro bono attorneys at Gibson, Dunn & Crutcher LLP (Ted Boutrous, Dore and Marissa Mulligan, plus former Gibson Dunn attorneys Eric Richardson, Dan Willey and Sasha Dudding when they were at the firm) and at Sheppard, Mullin, Richter & Hampton LLP (Tenaya Rodewald and Matthew Halgren).
(NS)
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