Petty officer held in secret for 4 months

By TIM MCGLONE, The Virginian-Pilot
August 4, 2006

NORFOLK — A petty officer has been in the Norfolk Naval Station brig for more than four months facing espionage, desertion and other charges, but the Navy has refused to release details of the case.

The case against Fire Control Technician 3rd Class Ariel J. Weinmann is indicative of the secrecy surrounding the Navy military court here, where public affairs and trial court officials have denied access to basic information including the court docket – a listing of cases to be heard.

After months of requests, the Navy this week provided The Virginian-Pilot with Weinmann’s name, rank and the charges he faces.

In an e-mail, Theodore Brown, a spokesman for Fleet Forces Command, said, “It is sometimes a challenge to balance the desires of the media, the public’s right to know, and the rights of an individual accused of a crime.”

“In this case,” he concluded, the command “is attempting to provide as much unclassified information as is reasonable, while maintaining an appropriate concern for the privacy of the individual involved. ”

A Pentagon spokesman declined to comment Thursday.

The Navy’s position was challenged by military legal affairs experts and First Amendment advocates who say the nation’s courts, whether civilian or military, historically have been open to the press and public.

A docket listing Weinmann’s preliminary hearing, called an Article 32, was never produced. The Navy would not disclose when the hearing was held.

“That’s hogwash,” said Eugene R. Fidell, president of The National Institute of Military Justice and a Washington lawyer .

“I know of no authority to keep the proceeding closed,” he said. “I’ve never seen an Article 32 classified.”

The command’s e-mail to The Pilot this week said that Weinmann was arrested at Dallas/Fort Worth International Airport on March 26 after he had been listed as a deserter. Fleet Forces officials refused to release the so-called charge sheet, which would detail the accusations against the sailor.

Weinmann had been serving aboard the submarine Albuquerque until he deserted in July 2005, according to Brown. Weinmann enlisted in July 2003, he said.

The enlisted man could face a court-martial. An investigative officer who presided over the Article 32 is expected to release a report to Weinmann’s command in the coming weeks. Besides espionage and desertion, Weinmann is charged with failure to obey an order and acts prejudicial to good order and discipline, according to Brown.

Espionage is defined, in part, by the Uniform Code of Military Justice as the communication to a foreign government of any information relating to U.S. national defense. It carries a maximum punishment of death.

Military defense lawyers say secret military hearings and the refusal to release basic charge information have become more common since the beginning of Operation Iraqi Freedom.

Court precedents and federal laws have established the right of public access to court-martial proceedings, including Article 32 hearings, the lawyers and First Amendment advocates say.

The Army Court of Criminal Appeals said in a 1997 case involving an attempt to close a criminal proceeding, “We believe that public confidence in matters of military justice would quickly erode if courts-martial were arbitrarily closed to the public.”

The court said the public and the media have a right to attend military court proceedings, “absent extraordinary circumstances.”

The Supreme Court has ruled that the closure of a court proceeding or the sealing of any criminal case must be decided by a judge on a case-by-case basis.

Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press in Washington, said that, even in military courts, an order must be issued closing or sealing a case.

Brown acknowledged Thursday that “there is no order,” but said that the charge sheet in the Weinmann case would not be released.

Dalglish and others said protecting someone’s privacy has never been a legally acceptable reason to exclude the public from a court proceeding or to withhold the identity of someone who’s been in custody for four months.

“We don’t lock up people in this country secretly,” Dalglish said. “Personal embarrassment has never been found to be a justification for closing a proceeding.”

Other than the Weinmann case, Norfolk Naval Station has refused to provide The Pilot with copies of the military court docket since at least November. The docket lists cases heard in military court each day. In March, The Pilot filed a Freedom of Information request for the past year’s dockets but has received no written response.

Beth Baker, a spokeswoman for the Navy Mid-Atlantic Region, has said that computer problems have made it difficult for the Trial Services Office at Norfolk Naval Station to generate a docket.

In two e-mails sent to The Pilot in January and February, Baker said the dockets should be available “soon.”

“The docket for the Trial Service Office has been transferred to a new system that is not user friendly to us at all,” Baker told The Pilot in a March e-mail.

More recent requests for the docket went unanswered.

Some military courts, including Marine Camp Pendleton in San Diego County, Calif., post their court dockets on a Web site.

The National Institute of Military Justice has begun a project to collect military court dockets and post them on its own Web site. Fidell, of the institute, said law students hope to begin pos ting them by the end of the summer.

“Why this continues to be an issue in 2006 is beyond me,” Fidell said.