Task & Purpose has been refused access to a public record by the Marine Corps. The document is not classified, secret, or otherwise sensitive, but the service has gone to unusual lengths to keep it out of our hands.
Specifically, Task & Purpose has sought the charge sheet for Lt. Col. Stuart Scheller — the 17-year infantry officer who ignited a firestorm of controversy in August after he filmed himself in uniform publicly criticizing U.S. military leaders over the chaotic withdrawal from Afghanistan — so that we could provide readers with original documents on his subsequent court-martial that served as the basis for our reporting. Considering that Scheller pleaded guilty to all of the charges in October, readers are left wondering: what exactly did the Marine Corps say that Scheller did wrong?
The answer lies in what military attorneys know as DD Form 458, which provides basic information about the accused person such as their name, rank, unit, time in service, and how much they are paid. The charges and specifications section is usually the most informative since it lists every alleged violation of the Uniform Code of Military Justice, when the offense took place, and provides specifics.
[Update: Following publication of this story, the full record of trial of the Scheller case, to include the charge sheet, was uploaded to the Navy Judge Advocate Corps website.]
In the course of reporting on Scheller, who was sentenced to forfeit $5,000 in pay and received a letter of reprimand on Oct. 18, Task & Purpose obtained the charge sheet from a source. While we did not publish it out of concerns for their security, most readers trust that when Jeff Schogol cites information “according to a charge sheet,” we have the documents to back it up. But not all readers do, and some may want to see the original document with their own eyes. As journalists, we understand and share their skepticism and know they, in fact, have a right to view this document just as we do.
Indeed, the Department of Defense operates under a 2001 policy that “information will not be classified or otherwise withheld to protect the government from criticism or embarrassment.” Known as the Principles of Information, the policy requires the U.S. military to “make available timely and accurate information so that the public, Congress and the news media may assess and understand the facts about national security and defense strategy.” It goes on to add that information “will be withheld only when disclosure would adversely affect national security or threaten the safety or privacy of the men and women of the Armed Forces.”
This policy extends to the Department of the Navy and the Marine Corps, and public affairs officers often apply these principles by using the shorthand maximum disclosure, minimum delay.
On Oct. 14, Task & Purpose asked the Marine Corps Training and Education Command, which oversaw the Scheller court-martial, for a copy of Scheller’s charge sheet. “The charge sheet can only be released via FOIA,” Capt. Sam Stephenson, a Marine Corps public affairs officer, wrote back within minutes, referencing the Freedom of Information Act that provides anyone the right to request records from any federal agency.
Yet the notion that charge sheets can only be released through FOIA is incorrect.
As a matter of fact, these documents have been routinely provided to Task & Purpose by military public affairs officers upon request. In September, an Army public affairs officer provided Task & Purpose with a charge sheet for Sgt. 1st Class Rob Nicoson, a soldier facing court-martial next year over allegations of misconduct that led to a brief gun battle in Syria between American soldiers and pro-regime forces. In Haley Britzky’s story on the case, we published Nicoson’s charge sheet (which the military redacted of private information prior to its release) because we feel it is important for readers to see the documents we report on for themselves, whenever possible.
More recently, Task & Purpose asked the Navy for the charge sheet of Petty Officer 3rd Class James Charles Hart, who recently pleaded guilty to advocating supremacist and extreme doctrine and other charges. Within about an hour of our request, a Navy public affairs officer provided the charge sheet, sentencing agreement, and an official statement about the case.
We’ve had similar interactions with the Air Force. But for reasons that are not entirely clear, our experience with Marine Corps public affairs has been markedly different. For years, Task & Purpose has asked Marine officials for charge sheets and they have typically responded with various excuses for why they cannot be released. Sometimes they are provided. But more often than not, Marine public affairs officers claim their hands are tied. Frustrated, yet resolute, we file FOIA requests. But the process to obtain these documents takes months, and sometimes years, since many FOIA offices are understaffed and unable to process the overwhelming number of requests they receive. The federal government averaged over three months to process all kinds of FOIA requests in 2020, according to a recent report from the Congressional Research Service. More than 140,000 requests sat unanswered and languished in the backlog that year.
Meanwhile, the two-decade-old principle of making available “timely and accurate information” about the military to the public it serves is essentially denied. All because the release of a public record seems to depend on whom a reporter asks.
Still, Task & Purpose directed Capt. Stephenson’s attention to the U.S. Navy Manual of the Judge Advocate General, or JAG Manual, which states that absent a protective order, information about military justice proceedings “may generally be released” through the cognizant public affairs officer “upon inquiry.”
That includes “information that has been admitted into evidence or has otherwise become a part of the public record of a court-martial in open session.” Indeed, a charge sheet is part of the public record of Scheller’s court-martial, which was held in open session in Camp Lejeune, North Carolina in mid-October.
Is the Marine Corps required to follow the Navy JAG Manual? Has the charge sheet been entered into the public record of the trial? Stephenson deferred those questions to officials at Headquarters Marine Corps. Officials there initially declined to answer and instead opted to provide a document titled “Specifications of Charges presented at SPCM ICO LtCol Scheller.pdf” — which, notably, is not the DD Form 458 charge sheet but is instead a recreation of the document in an unusual format. You can view it below:Specifications-of-Charges-presented-at-SPCM-ICO-LtCol-Scheller
“This information is being provided pursuant to JAGINST_5800.7G [The JAG Manual], which states that information presented at court may generally be released through the cognizant public affairs officer,” Maj. Jim Stenger wrote in an email along with the attachment. Stenger essentially provided a charge sheet but not the charge sheet because the manual uses the word “information” instead of “documents.”
Still, the five-page document, like the charge sheet it’s based upon, outlines what Scheller admitted he was guilty of saying, including him asking top Marine leaders: “did you throw your rank on the table and say it is a bad idea to abandon Bagram Air Field, a strategic airbase, before we evacuate everyone?”
The document shows that Marine lawyers outlined a litany of Scheller’s public comments that were filmed over multiple videos or written on social media. He called out several top Marine generals by name for what he perceived as having more concern with politics than doing what is right for junior Marines in harm’s way. “Potentially all of those people did die in vain if we don’t have senior leaders that own up and raise their hand and say we did not do this well in the end,” the charge sheet quotes Scheller as saying.
Stenger, the Marine Corps spokesman, confirmed there was no protective order in place but insisted that the JAG Manual permits public affairs officers to release the information in a charge sheet but not the document itself.
“I understand that the time it takes to process a record of trial does not conform to the demands of a competitive news environment and therefore leads to frustration,” Stenger said. “This is why I exercised the discretion allowed in JAGINST 5800.7G and provided the requested information from the charge sheet.”
Stenger added that charges and specifications are “not made public until they are read aloud in court which is, as it was in this case, open to members of the public and the media.” The charge sheet document, he said, would eventually be released publicly along with other court records from the Scheller case on the Navy JAG Corps website. That process could take months.
Nevertheless, Task & Purpose filed a FOIA request for a copy of the charge sheet on Oct. 15 after being instructed to do so by Capt. Stephenson. We asked for expedited processing because there was widespread public interest and the news value would be lost without timely access to the documents in question. The request was forwarded to the Training and Education Command, which denied our request for expedited processing on Oct. 21 since, according to FOIA coordinator Maria Gonzalez, the request did not “contain enough evidence to support” an “urgency to inform the public about an actual or alleged government activity” or show the request was made “by a person primarily engaged in disseminating information.”Acknowledgement_Letter
Within a few days, the FOIA request was completely denied.
“After careful consideration and consultation with the Staff Judge Advocate’s Office, it was determined all requested documents be withheld in full and are exempt from release pursuant to Title 5 U.S.C. § 552 (b)(3) and (b)(6),” Gonzalez, the FOIA coordinator, wrote in a final response letter to Task & Purpose on Oct. 25.
The letter went on to explain that release of a charge sheet — again, a public record — could not go forward since it was protected from disclosure under one of the nine FOIA exemptions. Gonzalez explained the Corps’ reasoning this way:
“FOIA Exemption 3 protects information specifically exempted from disclosure by another statute, if the statute (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. The statute that applies is Title 10 U.S.C. § 130 b which state that certain personally identifiable information pertaining to members of the armed forces assigned to “routinely deployable unit(s)” and certain employees of DoD and DHS be withheld, respectively.
FOIA Exemption 6 exempts from disclosure personnel or medical files and similar files the release of which would cause a clearly unwarranted invasion of personal privacy. This requires a balancing of the public’s right to disclosure against the individual’s right to privacy. The privacy interests of the individuals in the records you have requested outweigh any minimal public interest in disclosure of the information. Any private interest you may have in that information does not factor into the aforementioned balancing test.”
In review: We requested a public record in an email to a public affairs officer, and the officer instructed us to file a FOIA request. We then asked for the public record in a Freedom of Information Act request, and the Marine Corps said it could not provide even a single scrap of paper. Meanwhile, we have a document provided by Marine Corps public affairs that looks a lot like a charge sheet for Lt. Col. Stuart Scheller but is, in fact, nothing of the sort.
Unfortunately, the Marine Corps does not always release documents that are ultimately owned by the American public — documents that should be provided under its own policy. It sometimes appears to be used almost as a delaying tactic, a way to delay media inquiries about potentially embarrassing stories until public interest wanes. The thinking, presumably, is that with no records to show for it, there will be no story. In this case, however, the Marine Corps erred, because a branch of the military refusing to be transparent is worth reporting on.
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