Overcoming Access Hurdles to Court Martial Evidence in Iraq Prison Abuse Cases

By Smallman, David B. | Investigative Reporters and Editors, Inc. The IRE Journal, September/October 2004 | Go to article overview

Overcoming Access Hurdles to Court Martial Evidence in Iraq Prison Abuse Cases


Smallman, David B., Investigative Reporters and Editors, Inc. The IRE Journal


LEGAL CORNER

Journalists attending court-martial cases should be able to enhance coverage and analysis of alleged torture of Iraqi prisoners at the Abu Ghraib prison through familiarity with the rules governing public (and press) access to evidence introduced at those hearings.

For example, there is the Uniform Code of Military Justice (UCMJ), which is a federal law that establishes the basic structure of our military justice system, including Rules for Courts-Martial. (A current version of the Manual for Courts-Martial can be found at www.jagcnet.army.mil/laawsxxi/eds. nsf.) Rule 1103(b)(2)(D)(v) of the Rules for Courts Martial requires that to be complete, the record of a court martial must include "exhibits or, with the permission of the military judge, copies, photographs, or descriptions of any exhibits which were received in evidence ..." As noted in United States v. Harris (Sept. 24, 2001, U.S. Court of Appeals for the Armed Forces), military courts will admit into evidence a photograph as "a graphic portrayal of oral testimony," and, under the "silent witness" theory, it can be authenticated by other evidence that supports the reliability of the camera or video tape system that produced the image.

FOIA does not apply

The federal Freedom of Information Act, which ordinarily governs access to Defense Department records, does not apply to pending military proceedings. And subsequent FOI requests when those cases conclude will undoubtedly be subject to exemptions for privacy and national security. Recent FOI decisions suggest that denials of initial requests and arduous appeals can be expected. However, reporters may have an opportunity much sooner to gain access to Ihe same information. They can accomplish this by establishing a legal basis for disclosure of any materials that become part of the record of the case. This could include, for example, images of physical and sexual misconduct that also show or suggest the presence of supervisors. Or deposition testimony, letters, e-mail or memoranda entered into evidence demonstrating tolerance or knowledge of illegal acts up the chain of command.

Stringent record-sealing procedures

Disclosure of such information depends upon the willingness of journalists (and their counsel) to assert access rights during the pre-trial investigations and courts-martial. If they do, it could result in application of a "compelling interest/individualized findings/narrowly tailored means test" required in military proceedings before sealing an exhibit presented in open court. Unlike FOI requests, such determinations are based upon a qualified First Amendment right of access to information introduced into evidence in criminal trials. The relevant precedents indicate that military courts must follow stringent procedures before sealing an exhibit introduced into evidence.

First, the party seeking a sealing order must advance - in open court - an overriding interest, such as privacy or national security, that is likely to be prejudiced.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Overcoming Access Hurdles to Court Martial Evidence in Iraq Prison Abuse Cases
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.