A federal judge ruled last month that the Navy cannot keep criminal trials secret and must provide public access to hearings and records.
The order is the result of years of litigation brought by ProPublica and for the first time forces the service to more closely reflect the transparency required in civil court. The justices agreed with ProPublica’s opinion that the Navy violated the First Amendment with its policies.
“This is a landmark victory for transparency,” said Sarah Matthews, ProPublica’s deputy general counsel. “This is the first time a civilian court has held that the First Amendment right of public access applies to military courts and records. For too long, the Navy has been allowed to secretly prosecute military personnel, and this is the end.”
ProPublica sued the Navy in 2022 after the Navy refused to release nearly all court documents in a high-profile arson case in which a sailor was sentenced to life in prison for a fire that destroyed a Navy amphibious assault ship. A ProPublica investigation found that military authorities decided to prosecute Ryan Mays even though a military judge recommended that the charges be dropped because there was little evidence linking him to the fire or that the fire was the result of arson in the first place.
The Navy’s long-standing policy has been to withhold all records from preliminary hearings that consider whether there is probable cause to proceed with the case. For those that actually went to trial, the Navy provided scant records only in cases that resulted in a guilty verdict, long after the proceedings had concluded. Records were not released if the charges were dropped or the defendant was acquitted. As a result, the public was unable to assess whether the court-martial system was fair and whether important issues such as sexual assault were appropriately handled.
The Navy is now required to provide more timely access to all unclassified records from trials and preliminary hearings, regardless of outcome. This includes reports at key milestones in criminal cases, which the military calls Article 32 hearings, in which hearing officers act much like judges and recommend whether criminal charges should proceed. The Navy had argued in court that the reports did not need to be made public because they were “non-binding internal advisory documents.” Judge Barry Ted Moskowitz of the U.S. District Court for the Southern District of California dissented, saying at the beginning of the case that these hearings were “strikingly similar” to hearings in open civil court.
Frank Rosenblatt, director of the National Institute for Military Justice, a nonprofit advocacy group, said access to the report is a huge victory for the public. “Congress intended military justice proceedings to be a public window into what’s going on in the military, and in many cases, Section 32 reports can be very newsworthy,” he said. “Such proceedings often reveal scapegoating, investigational flaws, and the influence of command over public concerns shortly after an incident occurs.”
The ruling imposed a deadline on the Navy to release its records. Transcripts of hearings and trials must be submitted as soon as possible and within 30 days of request. Additionally, other court records must be filed as soon as possible and within 60 days at the latest.
The Navy is also required to provide advance notice of preliminary hearings, list the defendant’s full name, and file an indictment. After ProPublica’s lawsuit, the Pentagon issued guidance early last year requiring the military to provide at least three days’ notice of such hearings. But Moskwotis said that wasn’t enough time and extended the requirement to 10 days.
“Although the judge did not require the Navy to have simultaneous access to records as would be the case in civilian courts, we are excited that the Navy will no longer be able to withhold more than 99% of court records,” Matthews said.
Complying with the order “will require significant revisions to multiple Navy policies, directives, and standards, including revised guidance for preliminary hearing officers and the development and implementation of comprehensive training throughout the Navy,” the Navy said in its brief to the judge.
Mr. Moskowitz did not hesitate to order the Secretary of Defense to issue similar regulations across the services, as requested by ProPublica and required by federal law passed in 2016. (The Pentagon’s policy for the law was not published until 2023, but it fell far short of the goal of “timely” release of documents “at all levels of the military justice system” as required by Congress.) “Inaccurate and subject to discretion.”
The Navy did not respond to a request for comment on the judge’s order. At a previous court hearing, government lawyers told the court that “the Navy generally has an interest in complying with the law.”
ProPublica reports that Matthews and pro bono attorneys from Gibson, Dunn & Crutcher (Ted Boutruss, Michael Doerr, Marissa Mulligan and Mackenzie Robinson, as well as former Gibson Dunn attorneys Eric Richardson, Dan Willey and Sasha Dudding, were at the firm) and Shepard, Mullin, Richter & Hampton (Tenaya Rodewald and Matthew Hallgren).
