While President Biden is championing reforms in military justice, particularly in prosecuting sexual assaults, the U.S. Navy seems to have its own agenda, sidelining transparency.
In an era demanding change and transparency, especially in institutions like the military, the Navy’s latest actions feel like a throwback. Biden’s recent executive order marked an era-defining shift in military justice by putting sexual assault and murder case decisions into the hands of a special military prosecutor, rather than military commanders. For many, it was a commendable move towards fairness, victim protection, and a more just system overall.
However, the Navy seems to be clinging to shadows. In a puzzling move, new Navy rules maintain policies that keep crucial court records away from public eyes. This effectively means that the public remains uninformed about whether charges are even pressed against a service member unless the case reaches trial. The Article 32 hearings, which evaluate the validity of evidence for a trial, are held covertly, keeping pretrial records under wraps indefinitely.
This secrecy is even more alarming considering that, historically, commanders had the discretion to act on assault allegations – a process that received intense criticism for its inadequate response to rising reports of military sexual assaults.
The ProPublica lawsuit, which initially highlighted the Navy’s clandestine dealings in a high-profile arson case, is currently fighting against this fog of secrecy that the Navy seems determined to uphold. The fact that the Pentagon’s guidance earlier this year perpetuated many of these opaque policies, despite a 2016 law demanding transparency, is confounding.
“Congress demanded openness from our military, especially in the face of grave crimes like sexual assault that have thrived in shadows for too long. Yet, the Navy appears defiant,” says Sarah Matthews, ProPublica’s deputy general counsel. “Such a level of concealment isn’t just against the law; it goes against our constitutional rights.”
ProPublica’s tireless attempts to get court records in numerous sexual assault cases from the Navy mostly met with silence or limited, post-trial information. This strategy starkly contrasts the transparency standard held in federal and state courts, where records are typically public unless under specific, rare circumstances.
Despite the Navy citing the federal Privacy Act as a rationale for its withholding, the Pentagon contradicted this in 2021, saying that transparency mandates override the Privacy Act. This discrepancy led independent researchers to conclude that the Navy’s rules blatantly defy legal expectations.
As the debate around transparency in military justice continues, the Navy has an opportunity to act in favor of clarity and trust by Sept. 14, when their new rules take effect. But for many young and millennial readers, the question remains: Will the Navy finally come into the light?