by Megan Rose<\/p>\n
ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter<\/a> to receive stories like this one in your inbox<\/em>.<\/p>\n In 2016, Congress passed a law that was supposed to make the military justice system more transparent, instructing the U.S. military\u2019s six branches to give the public broader access to court records. Seven years later, the Department of Defense has finally issued guidelines for how the services should comply with the law, but they fall far short of the transparency lawmakers intended.<\/p>\n Caroline Krass, general counsel for the Defense Department, told officials from the Army, Navy, Air Force, Marines, Coast Guard and Space Force in a memorandum last month that they could mostly continue doing what they have been for years: keep many court records secret from the public.<\/p>\n In their 2016 law, lawmakers had envisioned a military justice system that operated much like federal courts, where the public has real-time electronic access to dockets, records and filings. Concerned about fairness and secrecy in the military system, Congress wanted the public to have similar access to records for courts-martial to allow for more scrutiny of how the military handles criminal cases, particularly sexual assault.<\/p>\n The law calls for the \u201ctimely\u201d release<\/a> of court records \u201cat all stages of the military justice system … including pretrial, trial, post-trial, and appellate processes.\u201d<\/p>\n The newly released Pentagon guidance<\/a>, however, does little to make the system more open. The guidance tells the services they do not have to make any records public until after a trial ends. It gives the military the discretion to suppress key trial information. And in cases where the defendant is found not guilty, the directive appears to be even more sweeping: The military services will be allowed to keep the entire record secret permanently.<\/p>\n The Pentagon did not respond to ProPublica\u2019s questions about the new guidance. A Navy prosecutor argued in a court filing<\/a> last year that the military cannot act like its counterparts in federal court because the military system doesn\u2019t have a clerk of court and needs to be \u201cfluid and mobile.\u201d<\/p>\n Despite the 2016 law, which required consistent standards across the military, the Pentagon for years let the individual services decide how to comply with the law, and public access to court-martial records remained extremely limited.<\/p>\n Frank Rosenblatt, vice president of the National Institute of Military Justice, said even before the new guidance was issued, the spirit of the law wasn\u2019t met. Leaving access decisions \u201cto the discretion of military officials really is a default towards secrecy,\u201d he said.<\/p>\n In September, ProPublica sued the Navy<\/a> for refusing to provide nearly all of the court records in a high-profile arson case. The Navy prosecuted a sailor for allegedly setting the USS Bonhomme Richard on fire. In 2020, the amphibious assault ship burned for more than four days and was destroyed, a more than $1 billion loss. A ProPublica investigation<\/a> showed there was little evidence of the sailor\u2019s guilt, and Seaman Recruit Ryan Mays was found not guilty<\/a> at his court-martial.<\/p>\n ProPublica\u2019s lawsuit was successful in getting the Navy to release hundreds of pages of court-martial documents in the Mays case. The suit also challenges the Navy\u2019s overall policy for withholding records and is ongoing. The lawsuit could end up questioning Krass\u2019 new directive as well for not following the 2016 law or abiding by the First Amendment and judicial rulings that grant timely access to court records.<\/p>\n ProPublica\u2019s lawsuit appears to have spurred the new Pentagon guidance. ProPublica, along with the Reporters Committee for Freedom of the Press and other media organizations, also wrote a letter to Krass requesting she outline standards for the military to follow. The National Institute of Military Justice supported ProPublica\u2019s lawsuit and wrote a separate letter to Krass.<\/p>\n However, nothing in the new policy would force the Navy or the other services to release similar court records in the future.<\/p>\n