The Bergdahl Block: How the Military Limits Public Access to Preliminary Hearings and What We Can Do about It

By Carpenter, Eric R. | The William and Mary Bill of Rights Journal, March 2018 | Go to article overview

The Bergdahl Block: How the Military Limits Public Access to Preliminary Hearings and What We Can Do about It


Carpenter, Eric R., The William and Mary Bill of Rights Journal


INTRODUCTION..................790

I. THE BASIC FEDERAL FRAMEWORK...............795

A. Open Trial Rights..................796

B. All Writs Act................799

II. SOME BACKGROUND ON THE MILITARY JUSTICE SYSTEM.............801

III. THE FACTS BEHIND BERGDAHL'S BLOCK.............809

IV. A MILITARY ACCUSED'S RIGHTS AND THE AVAILABILITY OF WRITS..............811

A. An Accused's Right to an Open Article 32...............812

B. Issuing Writs to Protect an Accused's Rights at the Article 32...........814

1. Potential Jurisdiction..............814

2. Necessity...............816

3. Appropriateness...............818

V. The Media's Rights and Availability of Writs..............819

A. The Media's Right to an Open Article 32...............819

B. Issuing Writs to Protect the Media's Rights to an Open Article 32 ............... 820

VI. THE ARMY COURT OF CRIMINAL APPEALS'S FLAWED ANALYSIS.............825

A. The Accused's Rights and Writs..............825

1. Potential Jurisdiction................825

2. Necessity................830

3. Appropriateness..............832

B. The Media's Rights and Writs...............835

CONCLUSION AND SOLUTIONS...............836

INTRODUCTION

On June 30, 2009, Sergeant Bowe Bergdahl walked away from his remote observation post in Paktika Province, Afghanistan.1 Shortly after, he was captured by hostile forces and remained in enemy hands until May 31, 2014, when he was returned to American control in exchange for five Taliban detainees who were being held at Guantanamo Bay.2 Those who were outraged by the prisoner swap, including then-Presidential candidate Donald Trump, advanced the narrative that Bergdahl was a coward and that six brave Americans died looking for him.3 Bergdahl was subsequently charged in the military justice system with desertion and endangering his unit before the enemy.4

In an effort to divert the case from the most serious form of court-martial, Bergdahl's defense team worked to counter this narrative. During the military preliminary hearing, the defense sought the public release of two unclassified documents that had been admitted into evidence: the transcript of Bergdahl's statement given to an investigating officer, and the executive summary of that officer's investigative report.5 These documents included information that Bergdahl's mental health problems caused him to leave his base, rather than cowardice; that he acted admirably while in captivity; and that no one died looking for him.6 With that information made public, legitimate public pressure might be brought to bear on the commanding officer who was charged with making the prosecutorial decision in his case.

Despite many requests, military officials refused to release the documents, telling the accused and the media to seek relief under the Freedom of Information Act7 (FOIA).8 The preliminary hearing officer also refused to make those documents public, saying he lacked the authority to release the documents because of an earlier order by a commander who had authority over the case.9 The defense and the media then filed writ petitions with a military appellate court asking that court to order the release of the reports.10 However, that court then found it did not have jurisdiction to issue the writs and agreed with the government's position that Bergdahl and the media should seek relief through FOIA.11 The documents remained hidden from public view.12

How can that happen? How can the military deny the accused and the public access to unclassified documents admitted at a preliminary hearing? The accused has a Sixth Amendment right and the media have a First Amendment right to an open military preliminary hearing.13 And, if transparency in criminal proceedings is ever of value, certainly it must be in cases like this, where the public is unfamiliar with the military justice system and may question its fairness. …

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