NCIS-San Diego: Government Concedes That Public Has Right To Attend Military Court Proceedings

November 5, 2010

After a dramatic scene in the courtroom earlier this week in the San Diego ACLU’s cutting-edge suit challenging the Naval Criminal Investigative Service (NCIS) for retaliating against a former Marine because of her work as a military defense investigator, the government’s attorney conceded that the public does have the right to attend military hearings. Based on the government’s representation, the ACLU of San Diego & Imperial Counties, representing the investigator, Carolyn Martin, withdrew a preliminary injunction motion to protect Martin’s access to the courtroom at Marine Corps Recruit Depot (MCRD) San Diego.

In what is described by observers covering the case as a “highly unusual legal action,” the assistant U.S. attorney acknowledged, after sharp questioning by US Federal District Court Judge William Hayes in a hearing Monday, that “MCRD allows members of the public to access its courtroom for open military hearings. MCRD will allow Ms. Martin this same access and she will be treated the same as any member of the public.” The government attorney had argued in court that the public has no right to attend an otherwise open military court hearing.

The government’s initial stance confounded military and legal experts. “This is bright line, extremely well settled law,” said Sean Riordan, staff attorney of the San Diego ACLU. “The First Amendment right of members of the public to attend court absolutely applies on military bases.” The ACLU sued NCIS and several individuals for violating Martin’s First, Fourth and Fifth Amendment rights, specifically for barring her from legal offices and courtrooms at MCRD, for harassment by military police at Camp Pendleton and threats made to her at her home.

At the Monday hearing, the government lawyer, Beth Clukey, responded to Judge Hayes’ question about whether Martin was treated differently than the public in being denied access to court at MCRD by saying that the military has “complete discretion” over its own court system and that the public was only allowed access “by invitation only.” Judge Hayes pressed the point, and Clukey admitted not knowing the military’s policy on the public’s right to court access. A hearing was set for next Tuesday for the government to provide evidence on the point. That hearing is now canceled.

“We are certainly relieved that the government recognizes this basic, constitutional right,” said David Blair-Loy, legal director of the San Diego ACLU. “Military law itself upholds the public’s fundamental right to attend both civilian and military courts. There is nothing in this case to justify restricting Carolyn Martin’s First Amendment right to attend court at MCRD.”

The case will now proceed through motions and discovery. The defendants are expected to respond to the complaint by mid-December.