Judge rules US Navy must give press access to court-martial records

(CN) — A federal judge on Friday sided with nonprofit news outlet ProPublica in its lawsuit against the U.S. Navy, finding that the press is entitled to records from court-martial proceedings and so-called Article 32 military preliminary hearings.

“The Court holds that the public right of access applies to filings, documentary evidence and related papers in Article 32 hearings and court-martial proceedings,” U.S. District Judge Barry Ted Moskowitz, a Bill Clinton appointee, wrote in the 16-page ruling. “The government’s policies denied ProPublica’s First Amendment right of access.”

The lawsuit stems from a fire that erupted in 2020 aboard the USS Bonhomme Richard, a 844-foot long amphibious assault ship docked in San Diego Bay.

The fire lasted four days and injured dozens of sailors and civilians. The ship, built in the 1990s for around $750 million, was so badly damaged that it had to be decommissioned and scrapped.

The Navy disciplined a number of servicemen in the wake of the fire. A seamen apprentice, Ryan Sawyer Mays, was charged in a military court with arson, though he was acquitted in 2022.

Megan Rose, a Pulitzer Prize-winning investigative journalist from ProPublica who had covered the collision of two Navy destroyers, became interested in Mays’ case. But her request for documents and transcripts from Mays’ court-martial and Article 32 hearing was denied by the Navy’s Office of the Judge Advocate General.

After ProPublica sued under the First Amendment — and after Mays was acquitted — the Navy agreed to hand over some heavily redacted documents relating to the case. But the Navy didn’t release transcripts of the proceedings, and the government maintained that could deny public access to court-martial filings in all cases ending in acquittal.

Last year, Moskowitz agreed to dismiss the military judge as a defendant but denied the Navy’s motion to dismiss the case altogether.

On Friday, he issued an injunction ordering the Navy to release “documentary evidence, transcripts, or related papers and filings from Article 32 and court martial proceedings.”

Going forward, he said the Navy could wait up to 30 days after proceedings to redact information “for bona fide national security concerns and for other valid and compelling reasons.” He also ordered the Navy to notify the public of upcoming Article 32 hearings at least 10 days beforehand, so that the public can attend.

Explaining his reasoning, Moskowitz wrote, “courts-martial are criminal proceedings in nature, not a pure military matter, and military courts can try common offenses by servicemembers divorced from military service.”

“If the press can attend Article 32 proceedings,” he added, “then any evidence offered there should not be withheld from the press merely because it is offered in documentary form.”

The judge rejected the government’s argument that acquittals should be treated different from convictions.

“A naval prosecution ending in an acquittal may have nothing to do with military matters or national security concerns at all,” he wrote. “The government’s arguments are simply overbroad.”

The Navy had also argued that it should be shielded from the lawsuit because the question of the press’ access to court martial proceedings was a political decision rather than a legal one. Moskowitz disagreed, writing, “The extent to which the Constitution or Congress properly limits that power — for the public to access fillings in naval prosecutions — is a legal question for courts and is not committed in the Constitution to Congress or the Executive Branch.”

ProPublica attorney Michael Dore, a partner at Gibson, Dunn & Crutcher, called the ruling “an important win for transparency and the public’s right to know.”

“The court made clear that there is a First Amendment right of access to military court proceedings and records,” Dore wrote in an email. “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 U.S. Attorney’s Office declined to comment.

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