Courts-martial are presumptively open. When a party moves to close all or part of a proceeding, perhaps to protect classified information, shield a vulnerable witness, or guard sensitive personal details, the military judge does not simply weigh the requesting party’s interest in secrecy. The judge must weigh it against the strong public interest in open military justice, and that public interest is frequently the reason a closure motion is denied or sharply narrowed. Understanding how the public interest enters the analysis explains why even genuinely sensitive cases usually stay open in large part.
The presumption of openness and its constitutional roots
Under Rule for Courts-Martial 806, courts-martial are open to the public. This is not merely a courtesy. The public and the press hold a qualified First Amendment right of access to court-martial proceedings, a right military courts have recognized in the line of authority running through United States v. Grunden and reflected in more recent decisions applying the same standards. Openness serves interests that belong to the public, not to the parties: it lets the community see that military justice is administered fairly, it deters misconduct by officials, it encourages witnesses to come forward, and it lends legitimacy to verdicts. Those public benefits are the counterweight that any closure request must overcome.
The two-part test and where the public interest lives
RCM 806 permits closure only when two conditions are met. First, there must be a substantial probability that an overriding interest will be prejudiced if the proceeding remains open. Second, the closure must be no broader than necessary to protect that overriding interest. The military judge must make these findings on the record and consider reasonable alternatives to closure.
The public interest operates throughout this test. The “overriding interest” the movant asserts has to be weighed against, and shown to outweigh, the public’s interest in access. It is not enough that some confidential interest exists. The interest must be substantial enough, and the threat to it concrete enough, that it overrides the presumption of openness. A generalized desire to avoid embarrassment, to keep proceedings low-profile, or to spare the command negative publicity does not qualify, because those concerns do not outweigh the public’s stake in an open process. The public interest thus functions as the baseline that the movant must defeat, and motions fail when they cannot.
Why “no broader than necessary” usually defeats full closure
The narrow-tailoring requirement is where the public interest most often produces denial of a sweeping closure request. Even when an overriding interest is real, the judge must protect it with the least restrictive means. The Grunden line of authority illustrates this in the classified-information context: a judge cannot close an entire proceeding simply because some testimony will touch classified matters. The analysis proceeds witness by witness, and even portions of a single witness’s testimony, and only the genuinely sensitive material may be heard in closed session, with everything else remaining public.
This means that in a sensitive case the realistic outcome is rarely total closure and frequently a denial of any closure broader than the precise sliver of sensitive content. The public interest in access to the rest of the proceeding, voir dire, openings, the bulk of testimony, argument, instructions, findings, and sentencing, remains intact and forecloses a blanket order. Reasonable alternatives, such as redacting exhibits, using pseudonyms or initials for protected witnesses, sealing specific documents, or temporarily clearing the courtroom for a single line of questioning, allow the judge to protect the overriding interest while honoring the public’s right to watch the rest.
How the public interest is given voice
Because the right of access belongs to the public and the press, courts give that interest a procedural foothold. A closure motion should be litigated openly, the judge should articulate findings explaining why any closure is justified and why no lesser measure would do, and the press or members of the public may seek to be heard or to challenge a closure order. The requirement of on-the-record findings is itself a product of the public interest: it forces the judge to confront the cost to openness before ordering secrecy and creates a record an appellate court can review. An order that closes proceedings without adequate findings is vulnerable precisely because it failed to account for the public’s interest.
Putting it together
The public interest is not a side consideration in deciding a closure motion; it is the constant against which the request is measured. RCM 806 starts from the premise that courts-martial are open and that the public and press hold a qualified First Amendment right of access. To close any part of a proceeding, the movant must show a substantial probability that an overriding interest would be prejudiced and that the proposed closure is no broader than necessary, both findings made on the record. The public interest defeats closure motions in two ways: it sets a high bar that mere embarrassment or convenience cannot clear, and through the narrow-tailoring rule it confines any permissible closure to the smallest possible portion of the case, as the witness-by-witness approach of the Grunden line demonstrates. In sensitive cases the result is usually not a closed trial but an open one with narrowly protected exceptions, because the public’s stake in watching military justice done is rarely outweighed by a party’s preference for secrecy.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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