This article originally appeared on ProPublica.
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Despite a 2016 law requiring greater transparency from courts martial, the US Navy is refusing to release nearly all court documents in a high-profile case in which a sailor faces life in prison.
Rookie sailor Ryan Mays, 21, has been charged with aggravated arson and endangering a ship in the 2020 fire that destroyed the USS Bonhomme Richard. Mays maintained his innocence.
On July 12, 2020, a fire broke out on the amphibious assault ship while it was docked at Naval Base San Diego and raged for over four days. The Navy was unable to extinguish the fire until the ship was so badly damaged that the service had to scrap it, a loss of over $1 billion.
Although the Navy accused Mays of starting the fire, the service’s eight-month investigation uncovered numerous blames. One more than 400 page report concluded that leaders, from those aboard the Bonhomme Richard to a three-star admiral, had failed to ensure the safety of the ship and had allowed it to become a fire hazard. Fire response was also grossly mishandled by leaders who had little understanding of how it should have worked, the Navy investigation found. Senior Navy leaders have called the multi-day fire preventable and unacceptable.
Last week, the military judge in the Mays case requests refused made separately by the defense and ProPublica to make the documents public. Cmdt. Derek Butler skirted defense claims — that the government was violating Mays’ Sixth Amendment right to a public trial — and ProPublica’s First Amendment claims. Butler did not address the constitutional issues involved and instead said he had no authority to release the documents.
In July, ProPublica first asked the Navy Judge Advocate General’s office for all court filings that had already been filed and discussed at length in open court in the Mays case. That office has denied access to all but two files already made public, refusing to release them until the end of the court martial — and only if Mays is found guilty. The court martial is due to begin on September 19.
In August, ProPublica, with retired Navy judge and attorney Paul LeBlanc, filed a petition asking Butler to release the documents, arguing that the First Amendment requires the government to make the documents public. ProPublica also argued that the public has a vested interest in understanding how and why the government is prosecuting Mays and ensuring he receives a fair trial.
“They’re trying to put somebody in jail for a really long time, and what they’re dropping off is hidden from people,” LeBlanc said. “These documents are filed on behalf of the people of the United States, and the people of the United States should have the same right to see them and to know what the government is doing on their behalf as they do in federal court. “
“How can anyone have any kind of trust in a system if they won’t let them read what prosecutors say on their behalf?”
In 2016, Congress passed a law requiring the military to make court martial records, records, and documents available to the public. The law was motivated in part by the military lack of transparency in sexual assault cases. The goal of Congress was to make court martial records as publicly available as federal court records.
The law specifically states that the military must facilitate access during “pre-trial, trial, post-trial and appeal proceedings”. But the Ministry of Defense decided that the law does not apply until the court martial is over. It is simply too difficult to make court martial records public while a trial is underway, said Capt. Jason Jones, prosecutor in the Mays case. written in his memoir asking the judge to refuse the records to the public. Military courts do not have a clerk to coordinate cases, and unlike civilian courts, which are in one location, military courts must operate in a fluid environment, such as a war zone, he said.
Butler also cited the 2016 Increasing Transparency Act as why he did not have the authority to release the records. He wrote that the law did not explicitly grant the courts the power to release records, but rather the secretary of defense. He did not address ProPublica’s argument that it has the power and obligation to release the documents under the First Amendment, which Congress cannot remove.
ProPublica assistant general counsel Sarah Matthews said the news agency disagreed with Butler’s interpretation of the law and would next ask the Department of Defense’s lead attorney Caroline Krass , to clarify what the law requires of services.
The federal government released the indictment and a search warrant detailing the Navy’s case against Mays. By withholding all other records, including those favorable to the defense, the Navy seeks to “secretly protect the record for its benefit,” Matthews wrote in the motion to Butler.
“Cases like these are open in every other courtroom in America. These records are not sealed or restricted. They were discussed in open court, in a proceeding that could send a man to jail,” Matthews said separately. “The Navy believes it can arbitrarily delay or even deny access to these records altogether, which is all the more troubling since Congress passed legislation requiring more, not less, transparency from our armed forces in cases like this.”
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