The Navy is no longer allowed to shroud its criminal trials in secrecy and must provide public access to hearings and records, a federal judge ruled last month.
The order, the result of a yearslong lawsuit filed by ProPublica, forces the service for the first time to more closely mirror the transparency required in civilian courts. The judge agreed with ProPublica that the Navy was violating the First Amendment with its policies.
“This is a landmark victory for transparency,” Sarah Matthews, ProPublica’s deputy general counsel, said. “It’s the first time a civilian court has held that the First Amendment right of public access applies to military courts and records. The Navy was allowed to prosecute our service members in secret for far too long, but that ends now.”
ProPublica sued the Navy in 2022 after the service refused to release almost all court documents in a high-profile arson case, in which a sailor faced life imprisonment for a fire that destroyed a Navy assault ship. A ProPublica investigation found that the service decided to prosecute Ryan Mays despite little evidence connecting him to the fire — or that the fire was a result of arson in the first place — and a military judge’s recommendation to drop the charges.
The Navy’s long-standing policy was to withhold all records from preliminary hearings, which consider whether there is probable cause to move forward with a case. In those that did go to trial, the Navy would only provide scant records long after the proceedings were over — and only if they ended in guilty findings. Records weren’t released if the charges were dropped or a defendant was acquitted. As a result, the public was unable to assess whether the court-martial system was fair or whether important issues, such as sexual assault, were being handled properly.
Now the Navy must provide more timely access to all nonclassified records from trials regardless of outcome as well as from preliminary hearings. This includes the report from a crucial milestone in a criminal case, what the military calls an Article 32 hearing, in which a hearing officer, in a role much like a judge, recommends whether criminal charges should proceed. The Navy had argued to the court that it shouldn’t be required to release these reports because they are “non-binding, internal advisory documents.” The judge, Barry Ted Moskowitz of the U.S. District Court for the Southern District of California, disagreed, saying earlier in the case that these hearings are “strikingly similar” to those in civilian courts that are open to the public.
Access to the reports is a big win for the public, according to Frank Rosenblatt, president of the National Institute of Military Justice, a nonprofit advocacy group. “Congress intended for the military justice process to be a public window into what is happening with the military, and Article 32 reports in many cases end up being highly newsworthy,” he said. “These proceedings often reveal scapegoats, investigative flaws and command influence on matters of public concern not long after incidents happen.”
The ruling imposed deadlines on the Navy for when records must be made public. Transcripts from hearings and trials must be turned over as soon as possible but no later than 30 days after a request, and other court records must be provided as soon as possible but no later than 60 days.
The Navy is also required to give advanced notice of preliminary hearings, listing the full names of defendants and providing their charge sheets. After ProPublica sued, the Pentagon issued guidance early last year requiring the military to give at least three days’ notice of these hearings. But Moskwotiz said that wasn’t enough time and bumped up the requirement to 10 days.
“While the judge did not require the Navy to provide contemporaneous access to records like in civilian courts, we’re thrilled that the Navy can no longer withhold more than 99% of the court records,” Matthews said.
The Navy said in a brief to the judge that complying with the order “will require substantial amendments to multiple Navy policies, instructions and standards, including revisions to guidance for preliminary hearing officers, and the development and delivery of comprehensive training across the Navy.”
Moskowitz stopped shy of ordering the secretary of defense to issue similar rules across the services, as requested by ProPublica and required by a federal law passed in 2016. (The Pentagon’s policy addressing the law, which wasn’t issued until 2023, fell far short of the “timely” release of documents “at all stages of the military justice system” that Congress called for.) Moskowitz said he could not make such a ruling because the secretary’s duties are “imprecise and subject to discretion.”
The Navy did not respond to requests for comment about the judge’s order. During the last court hearing, the government lawyers told the court that “the Navy has an interest in complying with the law in general.”
ProPublica is represented in the suit by Matthews and by pro bono attorneys at Gibson, Dunn & Crutcher LLP (Ted Boutrous, Michael Dore, Marissa Mulligan and Mckenzie Robinson, 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).
