The defense team for Sgt. Bowe Bergdahl, who is charged with desertion and misbehavior before the enemy, has won access to hundreds of thousands of pages of classified information.
In a Thursday ruling, the U.S. Army Court of Criminal Appeals denied an appeal made by the prosecution regarding access to classified information.
The court did not agree that the defense must obtain what is known as an Original Classification Authority approval before it can access information the government deems classified.
(The footnotes of the ruling define Original Classification Authority as “an individual authorized in writing, either by the president, the vice president, or by agency heads or other officials designated by the president, to classify information in the first instance.”)
“Once defense counsel seek access to classified information, it is incumbent on the government to ensure that any access to classified information is provided in accordance with applicable law,” the three-judge panel wrote. “In addition, defense counsel must provide trial counsel notice any time they seek to disclose any classified information to which they gain access.”
Previously, the defense said it had been given access to less than 1% of the classified material in the case.
“The government basically has been brushed back on what I thought were extravagant claims,” said Bergdahl’s attorney, Eugene Fidell.
The court has also lifted the stay of proceedings issued in early February, thus allowing Bergdahl’s court-martial to proceed.
Fidell said he was pleased with the ruling, particularly because it allows him to continue his pretrial preparations, but he warned that the government could appeal.
Though the ruling, if it stands, would compel the government to release an estimated 300,000 pages of documents, Fidell said he wasn’t sure what the documents include.
“It’s anybody’s guess. … The government has not told us what it’s giving us,” he said. “The real question is how long the government is going to take to get these things to us.”
Fidell does not expect Bergdahl’s court-martial to begin as scheduled in August, he said. The defense team has lost three months in the legal battle over the classified documents, and now it must review thousands of documents if and when the government hands them over, he said.
Asked via email whether the government intended to appeal the ruling, U.S. Army Forces Command spokesman Paul Boyce responded, “The U.S. Army Forces Command is working with the U.S. Army Trial Judiciary — the Army court in this ongoing military legal case — to schedule a hearing date and will announce this in advance of the court’s next scheduled hearing.”
Bergdahl was captured in Paktika Province, Afghanistan, in June 2009 amid circumstances that prompted the U.S. Army to appoint Maj. Gen. Kenneth Dahl to investigate Bergdahl’s decision to leave his post.
President Barack Obama announced Bergdahl’s release in May 2014, and less than a year later, the U.S. military charged the now-30-year-old sergeant with one count each of “Desertion with Intent to Shirk Important or Hazardous Duty” and “Misbehavior Before The Enemy by Endangering the Safety of a Command, Unit or Place.”
While he reiterated that he wasn’t certain what the documents will contain, Fidell said he suspects the documents will be more useful in defending his client against the misbehavior count.
Fidell has said Bergdahl was tortured during his captivity, spending months chained to a bed and years chained on all fours or locked in a cage. Dahl testified last year that jail time would be inappropriate in Bergdahl’s case because Dahl could not find any evidence Bergdahl was “sympathetic to the Taliban.”
Rather, Dahl said, Bergdahl wanted to call attention to what he considered poor leadership of his unit.
Gen. Robert Abrams, the commander of U.S. Army Forces Command, ordered Bergdahl’s case to a general court-martial in December, but the proceeding was put on hold in February until an appeals court could resolve the dispute involving the sharing of classified evidence with Bergdahl’s defense team.
Bergdahl’s next hearing is May 17 at Fort Bragg, North Carolina.
