SAN DIEGO (CN) — In a news outlet’s attempt to pierce the veil of a military court to get records of a trial against a Navy seaman acquitted of starting a fire that destroyed a ship, a federal judge ruled on Tuesday that the military judge can be dismissed, but the case itself will still move forward.
In July 2020, a fire erupted on board the USS Bonhomme Richard, a U.S. Navy amphibious assault ship docked in San Diego Bay. The fire lasted four days, injured dozens of sailors and civilians and destroyed the ship worth more than $1.2 billion.
Multiple senior officers and sailors in the Navy were disciplined after the fire, but the Navy pursued an arson charge against seaman apprentice Ryan Sawyer Mays in a military court. Mays was acquitted of the charge in 2022.
The investigative journalism outlet ProPublica says it tried for months to get Navy court hearing transcripts and other records related to Mays’ case, but all of its requests were denied. The Navy finally handed over some heavily redacted documents after Mays was acquitted, ProPublica said in its amended complaint.
The delay not only prevented the outlet from timely reporting on Mays’ case, but it also hampered its ability to report on dozens of other cases in Navy courts, including armed forces members charged with homicide, rape and other sexual misconduct, ProPublica claims, effectively preventing the public from accessing important court records and court proceedings, violating both First Amendment as well as military laws that mandate timely access to court documents.
The Navy also keeps secret the preliminary phase of criminal cases, including when proceedings are taking place, which makes it difficult for the public to even attend or access military courts, the outlet claims — and permanently withholds all court records in cases that end in acquittals.
ProPublica asked the court to issue a writ of mandamus, basically a court ordering a government official to correct an indiscretion, telling U.S. Secretary of Defense Lloyd Austin to set uniform standards and criteria for public access to military court documents, information about hearings and records.
The government argues that Austin already determined the standards for public access to court documents, to be enacted under military justice law, but the federal court judge wasn't swayed.
ProPublica argues that Austin failed in his obligations under the law to facilitate public access to court records, and in fact was using the law to prevent access.
“Indeed, defendants’ argument presupposes that plaintiff could not bring a mandamus claim even if the Secretary’s guidelines denied the public access to court records in virtually every case. The Court disagrees with that argument,” U.S. District Judge for the Southern District of California Barry Ted Moskowitz, a Clinton appointee, wrote in his order.
The government also argues that ProPublica can’t base its claims on outdated policies that have changed since the lawsuit was filed. Moskowtiz wrote that claim was more suitable to make in a motion to strike.
Moskowitz denied the government's request to dismiss Austin and Caroline Krass, the general counsel to the Department of Defense, but granted a request to dismiss Captain Derek Butler, the military judge in Mays’ case, as a defendant.
“It’s a win for transparency,” said Sarah Matthews, deputy general counsel for ProPublica. “We’re so thrilled to see this.”
ProPublica will file an amended complaint to challenge the Navy’s new rules for accessing records, which Matthews said still denies the public access to the courts and timely access of court records, and will assess whether to try to add Butler back on as a defendant.
The Office of the U.S. Attorney Southern District of California declined to comment.
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