Bergdahl v. Burke (Amicus)

At a Glance

Date Filed: 

September 25, 2015

Current Status 

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.

Case Description 

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.
December 11, 2015
Court of Appeals for the Armed Forces summarily dismisses news media appeal
December 11, 2015
Court of Appeals for the Armed Forces summarily dismisses news media appeal
December 3, 2015
Newspaper petitioners file reply brief in CAAF
December 3, 2015
Newspaper petitioners file reply brief in CAAF
November 23, 2015
Court of Appeals for the Armed Forces dismisses case without opinion
November 23, 2015
Court of Appeals for the Armed Forces dismisses case without opinion
November 20, 2015
Bergdahl files reply brief
November 20, 2015
Bergdahl files reply brief
November 20, 2015
Government files response to newspapers' petition
November 3, 2015
Hearst Newspapers and other media groups file writ-appeal petition to Court of Appeals for the Armed Forces
November 3, 2015
Hearst Newspapers and other media groups file writ-appeal petition to Court of Appeals for the Armed Forces
The newspapers appeal the October 14, 2015 decision of the ACCA summarily dismissing their initial petition.
November 3, 2015
Bergdahl joins newspapers' appeal, filed this same day
November 3, 2015
Bergdahl joins newspapers' appeal, filed this same day
Bergdahl had intervened in the newspapers' initial effort in the ACCA, and so he joins their appeal to the CAAF
October 26, 2015
Bergdahl files reply brief in CAAF
October 26, 2015
Bergdahl files reply brief in CAAF
October 23, 2015
Government files opposition in CAAF
October 23, 2015
Government files opposition in CAAF
October 22, 2015
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.
October 14, 2015
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.

October 14, 2015
NIMJ files amicus brief in support of Bergdahl's CAAF appeal
October 14, 2015
NIMJ files amicus brief in support of Bergdahl's CAAF appeal
The National Institute of Military Justice files an amicus brief in support of Bergdahl's appeal to the Court of Appeals for the Armed Forces.
October 14, 2015
CCR files amicus brief in support of Bergdahl's CAAF appeal
October 12, 2015
Bergdahl appeals denial to Court of Appeals for the Armed Forces
October 12, 2015
Bergdahl appeals denial to Court of Appeals for the Armed Forces
Bergdahl files a writ appeal petition with the Court of Appeals for the Armed Forces.
October 8, 2015
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.
October 5, 2015
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."
October 2, 2015
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.
October 2, 2015
Sgt. Bergdahl moves to intervene in Hearst petition
October 2, 2015
Sgt. Bergdahl moves to intervene in Hearst petition
Sgt. Bergdahl moves to intervene in the Hearst petition, thereby adding himself as a party.
September 30, 2015
Bergdahl files reply brief in ACCA
September 30, 2015
Bergdahl files reply brief in ACCA
September 29, 2015
Government files opposition brief in ACCA
September 29, 2015
Government files opposition brief in ACCA
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.
September 25, 2015
CCR files amicus brief
September 25, 2015
CCR files amicus brief

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.

September 21, 2015
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.