Overcoming Access Hurdles to Court Martial Evidence in Iraq Prison Abuse Cases
Smallman, David B., Investigative Reporters and Editors, Inc. The IRE Journal
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. …