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The Air Force is changing the rules on how the media and general public get information about airmen accused of crimes.
A recent Air Force Instruction lists several changes to how the service applies the Uniform Code of Military Justice that are intended to protect the privacy of accused airmen at the expense of the public's right to know.
The Air Force Instruction appears to curtail the public's access to criminal records.
"Under the Privacy Act, information from a system of records, such as a court-martial file maintained in a [Judge Advocate General's] office about an individual, may not be released to the public without the individual's consent unless release is required by the Freedom of Information Act," the instruction says.
But submitting a FOIA request does not guarantee that you will get such records if doing so would be "an unwarranted invasion of an individual's personal privacy," which is when someone's privacy interests outweigh the public's interest in the information, the instruction says.
"Considering the fact that anyone subject to the UCMJ can act as an accuser under the UCMJ, the accused normally retains a reasonable expectation of privacy upon preferral of charges," the instruction says.
That expectation of privacy begins to decline when the charges reach a public forum, such as a court-martial or Article 32 hearing, the instruction says.
An Air Force spokesman said the changes outlined in the instruction do not limit what information is available to the media but are meant to ensure that FOIA and the privacy act are implemented properly.
"This will not change the media's current ability to get charge sheets or other information about accused airmen," Lt. Col. John Dorrian said in an email. "We have simply clarified current policy and law to ensure uniform application across the Air Force. Cases must always be reviewed on a case-by-case basis."
However, the instruction also requires military attorneys to comply with the FOIA guidelines, a concern to Eugene R. Fidell, who teaches military justice at Yale Law School.
"Taken literally, this regulation produces absurd results," Fidell told Air Force Times.
Fidell wonders if everyone, including attorneys who want to write "friend of the court" briefs, will now have to submit a FOIA request to get any documents related to criminal trials from military attorneys — even defense motions. With all the paperwork, delays and internal appeals, the FOIA process ends up impeding transparency.
But retired Army Lt. Col. Dru Brenner-Beck doesn't believe the instruction's FOIA requirements are anything new.
"They may have been doing things less formally, but to the law, that was the requirement all along," said Brenner-Beck, a former military attorney who specialized in FOIA and privacy act issues for the Army.
The balance of privacy concerns versus the public's interest changes as military proceedings progress, she said. Before an Article 32 hearing, the only information available is the charge sheet, which includes the type of offense and the caveat that the charges are only accusations.
"As they get to the [Article] 32, because it's a public hearing, it's now become public, so therefore the privacy restrictions get slanted more toward disclosure as opposed to keeping it under control," she said.
But the instruction means the Air Force will default to the FOIA process as the only way to obtain court records, which are readily available in civilian courts, said Mark Caramanica, freedom of information director for the Reporters Committee for Freedom of the Press.
"Having to go through the FOIA process is definitely going to slow things down," said Caramanica, who is also an attorney. "If you want ready access to court-martial material, you're going to be put in the FOIA queue and be processed on a first-come, first-serve basis, which is not how our regular courts work. Keeping these records in possession of the JAG's office really frustrates ready access to court records which you would be able to get much more quickly in the civilian court."
The Reporters Committee believes that court-martial records should be held by a clerk within the military justice system so the public can see them — with the understanding that some sensitive information cannot be viewed, Caramanica said.
"When you have trials going on in real time, you need ready access to dockets to see what motions are being filed and so forth to keep up with the case and be able to report on it, and FOIA is not a good means of daily deadline-based reporting," he said.
For example, Air Force Times has tried unsuccessfully since March to get records about Staff Sgt. Nicholas Cron, who was sentenced to life without the possibility for parole after pleading guilty in January to killing a fellow airman at Kadena Air Base, Japan, after slashing the airman's neck, according to court reports. Cron called the man's wife — a co-defendant — so she could listen to him die.
Air Force Times submitted a FOIA request to the Air Force Office of Special Investigations in March and followed up multiple times. An Air Force Times reporter eventually received a response in May — which arrived two months late because it had been misplaced — that said OSI could not confirm or deny the requested information existed and, even if it did exist, it could not be released because it would constitute "an unwarranted invasion" of Cron's privacy.
Even though Cron had been convicted in a public court-martial, the case had not been "administratively closed," OSI explained.
Later, OSI said that since Cron and the dead airman's wife were still alive, Air Force Times should request "records pertaining to the death of the victim." The reporter did just that — and her FOIA request was denied again on the grounds that it was an ongoing investigation — even though both had been convicted.
"This final process takes a while because of the lengthy review process and all the legal folks that have to submit their final legal paperwork to us," OSI spokeswoman Linda Card said in an August email. "Then, all the stuff has to be scanned and manually entered into the system by someone. For this reason, OSI still considers this case open."
Undaunted, the Air Force Times reporter appealed and requested the trial's transcript from Pacific Air Forces. That request was ultimately sent to the Air Force secretary's office, which has requested more time to process the request "because we are examining a substantial amount of records."
As of Nov. 1, both the appeal and the request for the transcript are still pending.
In September, the Reporters Committee filed a "friend of the court" brief with the United States Court of Appeals for the Armed Forces arguing that it is in the public's interest that reporters have access to court records from military proceedings.
The brief challenged the cloak of secrecy the government has used to shroud all court records from the case of Army Pfc. Bradley Manning, who is accused of leaking classified information.
Even the court documents have been kept secret, all of which is an obstacle to the media's constitutionally protected right to report the news, the brief says.
"Journalists rely heavily on court documents to gain and provide to readers the background of and context surrounding a legal controversy — awareness and understanding of which is often necessary to accurately report on the dispute," the brief says. "Prior access to the materials allows reporters, the overwhelming majority of whom have no legal background or education, to process oftentimes complex legal theories at their own pace, or to interview a legal expert who could explain the issues, so they are better equipped to understand what is transpiring in the proceeding they attend."
The committee argues that the First Amendment protects the public's right to access documents from courts-martial.
"The Supreme Court's established practice of deciding issues of constitutional importance in public is grounded in the recognition that openness helps promote a perception of fairness and foster a better-educated public," the brief says. "But by refusing to provide reasonable and proper notices of such proceedings and the nature of the documents filed in connection therewith, the military justice system has severely undercut this foundational tenet of American democracy."