U.S. government appeals decision granting public access to military court proceedings

 The U.S. government filed a notice of appeal to the Ninth Circuit in ProPublica v. Butler, case number 22-cv-01455-BTM-KSC (S.D. Cal.).

The decision appealed from is the amended judgment by district court judge Ted Moskowitz, ECF No. 151. It says:

Plaintiff is granted the following declaratory judgment on count one of its second amended complaint: 

Defendants’ policies violated Plaintiff’s First Amendment right of access in Article 32 preliminary hearings and full court-martial proceedings. 

Plaintiff is entitled to notice of Article 32 preliminary hearings that is reasonably suited to facilitate attendance. The Navy shall provide at least ten (10) days’ advance notice to the public of all Article 32 preliminary hearings. The Navy must provide the full first and last name of the charged service member and the charge sheets, at least ten (10) days before the scheduled hearing, unless a compelling reason legally justifies redaction. 

The First Amendment requires the Navy to provide the public access to the documentary evidence, transcripts, filings, reports, and related papers submitted during Navy Article 32 preliminary hearings and court-martial proceedings, including those resulting in an acquittal, subject to redactions and/or withholdings required by statute or based on national security concerns or other valid and compelling reasons. The Navy must provide such access in all cases including Article 32 hearings that do not result in a court-martial and a court-martial ending in an acquittal. Any redactions or withholdings must be consistent with the First Amendment and must further a compelling government interest. The Navy may only redact or withhold such records from the public where a military judge or Article 32 hearing officer finds that the denial of access furthers a compelling government interest, the redaction or withholding is narrowly tailored to further that interest, and there are no less restrictive means available to serve that interest. The Navy must also comply with the procedural requirements of the First Amendment (notice, an opportunity to be heard and specific findings on the record). 

The Navy must provide the public right of access set forth in this judgment as soon as reasonably practicable but no later than sixty (60) days after receipt of a request, except that the Navy shall make the transcripts of public proceedings available as soon as reasonably practicable but no later than thirty (30) days following receipt of a request. Requests must be made to the appropriate office, which the Navy will publish. The person requesting the documents or transcripts shall pay the direct costs of transcription or duplication. 

Withholdings or redactions under FOIA or any statute must be consistent with the First Amendment. 

Plaintiff is otherwise denied judgment on its claim for contemporaneous access to filings and papers in Article 32 hearings and court-martial proceedings. 

Plaintiff is granted judgment in part on count two of its second amended complaint. Defendants are hereby permanently enjoined from denying Plaintiff’s First Amendment right of access in Article 32 hearings and court-martial proceedings. 

The Navy must publicly release, no later than April 30, 2026, the court records from United States v. Mays, consistent with the First Amendment. 

Defendants are granted judgment on count three of Plaintiff’s second amended complaint. 

Nothing in this judgment requires the Navy to create or release transcripts or documents that were not submitted or prepared in the course of Article 32 or courtmartial proceedings. 

The Navy is required to provide Article 32 reports to Plaintiff.

The district court had also denied the government's emergency motion to stay release of Article 32 hearing records. ECF No. 152. The standard for such a stay comes from Nken v. Holder, 556 U.S. 418, 427 (2009). Judge Moskowitz wrote: 

[T]he Government has made no showing—let alone a strong one—that it will likely succeed on appeal. Indeed, the Government does not even claim that the Court erred nor that the Government will in fact appeal. The mere possibility of an appeal— with no showing that the Court may have erred—is insufficient to satisfy the first Nken factor.

The Government also equivocates under the second Nken factor. The immediate release of the Mays records, the Government says, “could cause irreparable injury.” But the mere “possibility of irreparable injury fails to satisfy the second factor.” Nken, 556 U.S. at 427 (citation and quotation marks omitted); see also Plaquemines Par. v. Chevron United States, Inc., 84 F.4th 362, 376-77 (5th Cir. 2023) (ruling that the “defendants have fallen well short of showing that the second Nken factor weighs heavily in their favor” because they showed no “more than a mere possibility of irreparable injury”

Of carts and horses

Who could imagine that the president of a very-high-profile court-martial could decide that the government had made out a prima facie case before introducing a scintilla of evidence? Check it out here. 

Not a promising way to commence a trial.

Are the STCs constitutional? (Any bets?)

The Pace Law Review has published Josef Danczuk's The Constitutionality of the Special Trial Counsel Under the Apogee of Judicial Deference. Abstract:

Congress has undertaken some of its broadest reforms of military courts-martial in decades. The creation of the Special Trial Counsels (STCs) intentionally removes nearly all court-martial powers from military commanders for “covered offenses,” some of the most serious prosecutions. Many commentators have expressed concern that this change untethers the court-martial system from its historical anchor of discipline within the military—an anchor that the Supreme Court has used to grant exceptional deference to Congress for its legislation pursuant to the Make Rules Clause. However, the constitutionality of the STCs and the deference federal courts grant Congress in this realm should not be considered in jeopardy. STCs are akin to many prior Congressional exceptions to the command-centric disciplinary model. And under Ortiz v. United States, the Supreme Court’s most recent court-martial case, STCs are neatly within the court-martial’s supporting aims of discipline and justice.

Commonwealth military justice principles and model laws

ENDORSEMENT OF THE COMMONWEALTH MILITARY JUSTICE PRINCIPLES AND MODEL LAWS

A Commonwealth milestone in principled and practical reform

By His Honour Judge Alan Large, Judge Advocate General of the UK Armed Forces, and Francisca Pretorius

In many smaller Commonwealth jurisdictions, Defence Acts were enacted at independence and have remained largely unchanged for decades. The result is that military justice systems have not kept pace with developments in international humanitarian law, human rights law, or constitutional jurisprudence. In February 2026, at the Commonwealth Law Ministers Meeting in Fiji, Law Ministers formally endorsed the Commonwealth Military Justice Principles and the accompanying Commonwealth Model Law on Military Justice for Smaller Armed Forces.

The initiative was the culmination of a multi-year effort, and reflects sustained collaboration between judges, practitioners, and member country representatives across the Commonwealth, with consistent support from the Commonwealth Lawyers Association and the Commonwealth Magistrates' and Judges' Association.

Origins of the Initiative

The Commonwealth Military Justice Transformation Project commenced in 2022 pursuant to a mandate issued by Law Ministers at the Commonwealth Law Ministers Meeting that year. The work was undertaken under the auspices of the Commonwealth Secretariat's Office of Civil and Criminal Justice Reform (OCCJR). At the time, Francisca Pretorius served as Head of the OCCJR, working alongside His Honour Judge Alan Large.

The Commonwealth Military Justice Principles

The first phase of the initiative focused on the development of high-level Principles.

An expert working group, led by His Honour Judge Alan Large and supported by Francisca Pretorius, engaged in nearly a year of structured online meetings before convening in Stellenbosch, South Africa, in November 2023. At that meeting, the group finalised a draft set of ten Principles designed to articulate foundational standards for smaller armed forces.

These Principles were subsequently reviewed and refined through a formal intergovernmental Working Group, with the text shaped to reflect both expert insight and member-state ownership.

The Principles are non-binding but function as aspirational benchmarks against which jurisdictions may assess existing systems and orient future reform. They articulate core standards relating to independence and impartiality of military courts, separation of investigative, prosecutorial, and judicial functions, fair trial guarantees and due process, qualifications and security of tenure for judicial officeholders, appellate and review mechanisms, transparency and accountability, and alignment with international legal obligations.

To our knowledge, this is the first time an intergovernmental body has formally endorsed a consolidated set of military justice principles tailored specifically to smaller armed forces, significant for the development of military justice globally.

The Model Law for Smaller Armed Forces

The Model Law constituted a distinct, though complementary, second phase of the project.

Smaller armed forces operate within particular structural constraints. Limited personnel numbers and institutional proximity can make separation of functions more complex to operationalise. Reform must therefore be principled, but also realistic and scalable.

It was against this backdrop that the Model Law was drafted by Christopher Griggs of New Zealand, drawing on comparative Commonwealth practice and informed by the Principles.

The Model Law provides a practical legislative template that is adaptable to different constitutional arrangements, scalable to smaller force structures, and structured to include options in certain areas. It is not a prescriptive instrument; it offers a carefully designed toolkit from which jurisdictions may draw when modernising Defence Acts.

Endorsement by Law Ministers

The endorsement by Law Ministers in Fiji confirms that both the Principles and the Model Law have moved beyond expert recommendation to formal Commonwealth recognition.

This endorsement does not impose binding obligations on member states. It affirms a shared commitment to principled reform and provides a structured pathway for those wishing to undertake legislative review.

The Road Forward: From Endorsement to Implementation

While the endorsement marks a significant milestone, implementation now becomes the central task. Several member states have already expressed interest in technical assistance to review and update their defence legislation in light of the new benchmarks. The Commonwealth Secretariat is engaging with interested jurisdictions to support legislative gap analyses, drafting assistance and adaptation of the Model Law, stakeholder consultations, judicial and practitioner training, and implementation planning. 

For this phase, the Principles provide the normative compass and the Model Law provides the structural blueprint. The pace and depth of reform will ultimately depend on member state engagement and ownership, and early signals are encouraging.

The endorsement of these instruments is not the end of the project; it is the point at which the real work begins.

Does international human rights law apply in armed conflict?

To what extent does international human rights law (IHRL) apply in armed conflict? There's no expert consensus. Hawks tend to embrace lex specialis (that international humanitarian law (IHL) is meant for war, so IHRL should get out of the way) while doves advocate a belt-and-suspenders approach (that IHL and IHRL are mutually reinforcing).

My article "Discipline and Punishment" with Belmont Law Review explores this chasm through the lens of a specific issue: the standards for disciplining and punishing soldiers who misbehave in war. While IHL demands that armed forces employ swift and robust disciplinary measures, IHRL insists on nonderogable procedural rights and fair trial standards.

Those two views are often in tension. While most (all?) military justice scholars adhere to the IHRL view, I argue that the IHL position is more persuasive and correct. That's not because I'm a hawk. Rather, because the IHRL view should account for more than just fair-trial rights. Another strand of IHRL emphasizes the rights of civilians be free from illegal military violence. When courts can't be easily convened (such as during armed conflict), fair-trial insistence results in impunity, which harms victims.