The Army Court of Criminal Appeals' denied Bergdahl's petition and a similar one filed by various news organizations and joined by Bergdahl. On November 23, 2015, the Court of Appeals for the Armed Forces dismissed the appeal by Bergdahl in a one-sentence order containing no reasoning. The news organizations' appeal was summarily dismissed a few weeks later, on December 3, 2015. On December 14, acting against the investigating officer's recommendation, General Robert B. Abrams ordered Bergdahl to face a general court-martial on charges with the potential for life imprisonment.
CCR filed an amicus brief in the case of U.S. Army Sergeant Bowe Bergdahl, a former Taliban prisoner in Afghanistan who was released in 2014 in exchange for five Guantanamo prisoners. Bergdahl is under investigation before an Article 32 hearing on allegations of desertion and misbehavior before the enemy. An Article 32 hearing is a preliminary hearing to decide whether there is enough evidence to merit the convening of a general court-martial against an accused. It is often described as the military version of a grand jury, but unlike a grand jury hearing it is carried out in public, with defense counsel present, and a significantly more adversarial process than a civilian grand jury proceeding.
Bergdahl's first interrogation record and the government report based on it are entirely unclassified and were submitted into evidence in the Article 32 proceeding. The defense, which includes military counsel and a civilian attorney, Eugene R. Fidell, who teaches military justice at Yale Law School, is seeking to release them publicly in order to serve as a counterweight to the government leaks and innuendo informing the current public debate around the case. The case has aroused significant public controversy and has been mentioned repeatedly in the context of the presidential nomination campaign, with various candidates and TV pundits announcing that President Obama's decision was a "bad deal" for a "traitor," rather than an attempt to rescue a hostage from five years of torture.
The government has effectively insisted that the defense cannot release the documents publicly. The Convening Authority – a senior military officer who oversees the Article 32 proceedings – has stated that he lacks authority to allow the release and issued a protective order concerning the documents in the case.
CCR's participation in this case follows up on our lengthy effort to ensure media and public access to documents (briefs, transcripts, and judicial orders) in the court-martial proceedings for PFC Chelsea Manning in 2012 and 2013.
Case Timeline
December 14, 2015
Gen. Abrams orders Bergdahl charged before general court-martial with desertion and misbehavior before the enemy, ignoring the recommendation of the Art. 32 investigating officer that only far less severe charges be made before a special court-martial.
December 14, 2015
Gen. Abrams orders Bergdahl charged before general court-martial with desertion and misbehavior before the enemy, ignoring the recommendation of the Art. 32 investigating officer that only far less severe charges be made before a special court-martial.
NBC News files amicus brief in support of Bergdahl's appeal to Court of Appeals for the Armed Forces
October 22, 2015
NBC News files amicus brief in support of Bergdahl's appeal to Court of Appeals for the Armed Forces
NBC News files an amicus brief in support of Bergdahl's appeal to the CAAF, detailing the parameters of the common law right of access to judicial documents, which stands alongside the First Amendment right of access.
ACCA denies newspapers' petition for access to documents
October 14, 2015
ACCA denies newspapers' petition for access to documents
The Army Court of Criminal Appeals, by a one-paragraph per curiam order, denies the petition filed by a group of newspapers seeking similar access to documents, on grounds that the court lacks jurisdiction to consider the claims.
Army Court of Criminal Appeals (ACCA) rejects Bergdahl's petition
October 8, 2015
Army Court of Criminal Appeals (ACCA) rejects Bergdahl's petition
A three-judge panel of the Army Court of Criminal Appeals rejects Bergdahl's petition (without, apparently, acting on the Hearst Newspapers, et al. petition), finding that it lacks jurisdiction and that Bergdahl should be denied relief on the merits in any event since there are other routes to obtain the documents and his right to release the documents is not well-established.
Article 32 presiding officer's recommendation and report kept secret
October 5, 2015
Article 32 presiding officer's recommendation and report kept secret
Lt. Col. Mark Visger, who presided over Bergdahl's Article 32 hearing, submitted his report and recommendation, both unclassified, but both are being withheld from the public. In a statement, Bergdahl's counsel asks for the material to be made public and conveys that "Sgt. Bergdahl ... want[s] to express once again his gratitude to all those who worked to rescue him and who provided (and continue to provide) needed medical and other care."
Hearst, New York Times, and other media groups file second mandamus petition seeking access to documents
October 2, 2015
Hearst, New York Times, and other media groups file second mandamus petition seeking access to documents
Hearst Newspapers, The New York Times, The Washington Post, BuzzFeed, and others file a separate petition seeking to assert directly the public's First Amendment right of access to the documents and transcripts of the proceedings, making many of the same arguments found in CCR's amicus brief.
The government argues that the defense is simply trying to argue the case in the media, ignoring the fact that the Supreme Court has said repeatedly that openness affects the accuracy of outcomes. The government also argues that FOIA is a sufficient guarantor of public access.
CCR's amicus brief argues that Bergdahl's request needs to be viewed in light of the near-absolute First Amendment right of the public to access documents filed in judicial proceedings, whether in military or civilian courts, absent a specific compelling interest articulated by the government and narrow tailoring of any restrictions; that such access needs to be contemporaneous with the proceedings in question, or the accuracy-enhancing effect of openness will be lost; and that pretrial proceeding documents no less than trial proceeding documents are subject to the same right of public access.
Bergdahl files mandamus petition in Army Court of Criminal Appeals
September 21, 2015
Bergdahl files mandamus petition in Army Court of Criminal Appeals
Bergdahl's attorneys appeal to the Army Court of Criminal Appeals, seeking an order forcing the government to release the documents and expressly permitting defense counsel to release the documents to the public.
