3 Senators urge greater transparency in military justice

Three U.S. Senators have sent the following letter to the Secretary of Defense:

December 8, 2015 

The Honorable Ashton B. Carter
U.S. Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000 

Dear Secretary Carter: 

We write in response to a recent Associated Press (AP) article entitled, "Opaque Military Justice System Shields Child Sex Abuse Cases," which details an astounding lack of transparency and accessibility in military criminal proceedings that prevents the public from knowing the full scope of crimes committed by servicemembers-including sex crimes involving children-or how much time these criminals spend behind bars. I urge you to work quickly to reform the military judicial system so that it is transparent and accountable. 

According to the AP's investigation, approximately 30 percent of the inmates confined in the military's prison network were charged with sex crimes involving children-the single largest category of inmates-and their charges ranged from viewing and producing child pornography to sexual assault and rape. The investigation also found that the Department of Defense reduced the sentences of several of the alleged child sex offenders through undisclosed pre-trial agreements. This is incredibly alarming. 

While there may have been legitimate reasons for some of these decisions, it is prohibitively difficult to independently assess the decisions in a timely manner since the military services do not include legal records or trial outcomes in an online database like the civilian court systems. The information available online to the public is limited and difficult to access. In many cases, information is only provided after submitting Freedom of Information Act requests, which can take months. In its investigation, the AP only managed to obtain five full trial records out of 200 cases-and only after multiple FOIA requests and months of waiting. We find it troubling that the military delayed releasing-or even completely withheld-critical facts about these cases. The obscurity and sluggish response time only creates suspicion and mistrust. 

We are also concerned that the Department keeps separate records regarding family-related assault cases through its Family Advocacy Program, and that these records are not included in the annual Sexual Assault and Prevention Response Office (SAPRO) report that is submitted to Congress. Taken in combination with the AP's findings, we are worried that we continue to lack a clear picture of the full rates of sexual assault in the military. 

The Constitution mandates a presumption of access and openness to judicial proceedings in criminal cases, which is designed to provide accountability and transparency. While we understand the necessity for the military justice system to operate independently of state and federal courts and keep national security information and juvenile identities sealed, it cannot continue to function under a cloak of secrecy. The lack of transparency in the military justice system calls into question the integrity of the institution and hides the system's shortcomings. 

As such, we request that you undertake efforts to restore the public's confidence in the military justice system by applying the same openness standards that govern civilian courts-such as making trial and appellate documents available to the public via the Public Access to Court Electronic Records (PACER) service-in order to ensure accountability and transparency, unless where there are legitimate national security or privacy concerns. Additionally, we request that the Department begin including Family Advocacy Program related incidences in the annual SAPRO reports submitted to Congress. 

Thank you for your attention to this request. We look forward to your response. 

Sincerely, 

Barbara Boxer
United States Senator 

Kirsten Gillibrand
United States Senator 

Mazie Hirono
United States Senator