Sergeant Bergdahl has filed another petition for extraordinary relief – this time seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture.

A copy of the petition is available here.

According to the petition, during last week’s public Article 32 preliminary hearing, the investigative report and a transcript of MG Dahl’s interview of Bergdahl were submitted to the preliminary hearing officer. Sergeant Bergdahl wants to make these materials available to the public. However, Sergeant Bergdahl and his counsel are all subject to a protective order prohibiting them from releasing the materials (a copy of the order is attached to the petition; pages 89-90 of the PDF).

The petition also reveals that Sergeant Bergdahl’s counsel sought a advisory opinion from the Army’s Professional Responsibility Council regarding the ethics of releasing these materials in violation of the protective order. The request for the opinion is provided as an attachment to the petition and states that:

The defense is asking the convening authority to clarify or modify the protective order to permit the defense to disseminate unclassified case documents such as the transcript of SGT Bergdahl’s interrogation and MG Dahl’s executive summary. The defense wishes to be able to disseminate both of those documents at such time as they are marked in evidence by the preliminary hearing officer. This is important as a matter of affording SGT Bergdahl a fair hearing in the court of public opinion, since the government’s live witnesses’ testimony will be heard by the numerous news media representatives who are expected to attend the preliminary hearing, whereas mere documentary evidence will not be accessible by them or other new media in real time. In effect, the public will have only the government’s side of the story, but not the defense’s, as part of the critical news cycle.

Pet. Ex. 6 at 5 (page 47 of the pdf). Astonishingly, the Professional Conduct Council refused to issue any advisory opinion on the matter.

While concern about the “court of public opinion” is a debatable (perhaps dubious) basis for relief from a protective order, the writ petition presents the issue in a more fundamental context:

ONCE AN UNCLASSIFIED DOCUMENT HAS BEEN ACCEPTED IN EVIDENCE IN A PRELIMINARY HEARING OPEN TO THE PUBLIC, MUST THE CONVENING AUTHORITY RELEASE IT AND PERMIT THE ACCUSED TO DO SO?

There is strong precedent that an Article 32 must be open to the public and the press unless “compelling circumstances dictated a different result.” ABC, Inc. v. Powell, 47 M.J. 363, 366 (C.A.A.F. 1997). However, “every case that involves limiting access to the public must be decided on its own merits. Furthermore, the scope of closure must be tailored to achieve the stated purposes and should also be reasoned, not reflexive.” Id. at 365 (marks and citation omitted). The protective order in the Bergdahl case is very broad and seems to run afoul of this requirement.

Notably, neither the protective order nor the petition reference Mil. R. Evid. 506: The privilege for Government information other than classified information (one of the few privileges that I believe the Government should be able to assert under the UCMJ). That privilege applies at Article 32 preliminary hearings (in accordance with the new R.C.M. 405(h)). Yet it appears that the Government has not (yet) claimed that specific privilege.

The Government may well have the right to deny the public access to some of the materials that Sergeant Bergdahl wants to release, however I think there’s a very strong argument to be made that it has failed to narrowly tailor the restriction to meet only legitimate protective needs.

14 Responses to “Bergdahl seeks a third extraordinary writ”

  1. RY says:

    I think the petition misses the mark.  The issue is really the validity of the protective order.  The burden is on the petitioner and the standard for writs is quite high.  It is unquestionable that the government may issue protective orders.  It may be argued that the protective order effectively attempts to shield (i.e., pseudo-classify) an unclassified document to prevent disclosure but there can be no doubt of the authority to issue protective orders.  Further, it is unquestionable that the Government may seek closure of certain portions of the hearing.  The burden here, therefore, is to show the Government exceeded its authority.  I find that analysis weak.
     
    IMHO, the issue is quite simple.  It’s about the protective order.  While the analysis could be made complicated, in this case, it is made easy by the Art 32 proceedings.  There has been specific discussion about the Sgt Bergdahl’s interview.  Whether on direct examination or cross-examination, the subject matter was relevant to the hearing and it is now in the public.  Like with actual privileged information, once released outside of the privileged party, it is no longer subject to privilege.  Here, the hearing was not closed and the public was present.  Whatever the rationale for desiring to protect this particular piece of evidence, the Government can no longer justify continued protection from the public at this point.  This is where the rest of the petition comes into play.  The public has a right to the rest of the unclassified interview at this point and Sgt Bergdahl has a right to respond to Government evidence and statements to the media.  In the Air Force in particular, professional standards about discussing case detals with the media specifically permits a defense counsel to respond to Government statements and to clarify matters that may not be accurately presented to the media.  It is all about the limits of the order and how it can no longer stand for this document regardless of the original merits for the protective order.
     
    Lastly, the requested relief is quirky.  I’m not aware of any court ordering public release by the Government.  That seems to me to be out of their lane.  In that sense, I’m not sure mandamus is the right writ because this is really about affirming DC’s correct view (IMO) that the order is not enforceable at this point for this interview.

  2. Saul says:

    If the convening authority isn’t the approval authority for the AR 15-6 investigation; can the convening authority release the investigation which it did not order nor approve? Or allow the subject to release the results of the investigation?
    Seems to me the approval authority for the 15-6 would control release.

  3. Vulture says:

    Saul.  Normally the proponent of a document is the classifying authority.  They are normally the ones that have to declassify it.  That is, the person or office that writes it can put a classification stamp on it.  Is the subject to abuse?  That is a question that came up on another investigation conducted in Afghanistan.  I think that it was on the “kill teams” and involved some language that the officer under investigation was too concerned with gaining the approval of his subordinates.  To this day, the classified portions of that investigation have not been released.  Bergdahl’s counsel has an up hill battle.

  4. Concerned defender says:

    Evidence is sealed all the time and kept from the public;  sex assaults, child porn, child witnesses, classified or sensitive documents, etc. Perhaps it is irrelevant but validly privileged information.  If released, defense may actually gain nothing.  But if kept priveleged the defense scores a victory in the court of public opinion, feeding the Bergdahl supporters.  What could Bergdahl have said that would possibly aid in legitimately, persuasively negating any of the elements of desertion or misbehavior?  The elements are quite clear, but that runs outside the scope of this thread. 
    Having said that, I’m in favor of open and public hearings and the defense should have access to and do as it pleases with evidence.  Government is going to have to provide one heck of a good reason to prevent this – My curiousity is peaked on what could possibly be the evidence causing such a hubub

  5. Zachary D Spilman says:

    Discussion of classification misses the mark. 

    Among the documents received in evidence was the report of an AR 15-6 investigation conducted by MG Kenneth R. Dahl in 2014 and a 371-page transcript of MG Dahl’s 6-7 August 2014 interview of petitioner. These documents are unclassified. They were repeatedly referred to in testimony in open court in the presence of spectators. 

    Pet. at 2 (emphasis added). 

  6. Alfonso Decimo says:

    On page 7 of the petition, the defendant/petitioner makes his argument as to why. That’s what I have been wondering. Why. He essentially argues that unfavorable media coverage for the past year threatens his right to a fair trial and the contents of this report would result in a more favorable public opinion of his conduct. That’s the petitioner’s strongest argument, but the remainder of the petition deals with the rights of the news media and that argument should be made by the new media, not the defense team. For “the court of public opinion” argument, the government will respond that protecting his right to a fair trial is the purpose of the order. Any damage to his right to a fair trial will be handled in the voir dire process. In the final analysis, other than whatever is gained by taxing government resources, I still don’t know why he filed this petition. 

  7. Andy says:

    AR 15-6, paragraph 3-18(b) states, “No one will disclose, release, or cause to be published any part of the report, except as required in the normal course of forwarding and staffing the report or as otherwise authorized by law or regulation, without the approval of the appointing authority.”  So whoever was the appointing authority for the MG Dahl investigation would have to approve the release.  That said, the “public” can always file a FOIA request to get a redacted copy of the investigation.  I am sure members of the press have already done so.  

  8. Phil Cave says:

    Andy, is the All Writs Act a law?
     
    Once the report is released outside the staffing chain — say to prosecutors and others outside the commander and her staffing chain, does that then waive or negate 3-18(c)?  Hasn’t someone either the AA or superior or other authorized release.  So at that point is not the AR irrelevant?  Release has been made here, and there is no language that cabins further releases of the released report.  And it appears that the use of the report at the 32, in public, substantially undercuts the legitimate policy consideration of keeping the 15-6 close hold until the report is finalized.
     
    So the issue now is not about the AR.  The issue is about the openness of the 32.  Once the reort is publically discussed at the 32 that IMHO invalidated the order, it is now an order seeking to close the 32, or parts of it.  Once there is an issue about “clsoing” the 32, then I think we are closer to an issue that the military appellate courts can take under the All Writs Act.  The question then becomes one of timing a la U.S. v. Phillips.  The post-32 acts now put this issue into the McKinney and San Antonio Express lane.  The military appellate courts have taken up Writs on media access to the 32.  Let’s see what happens next, perhaps it will get even more interesting.

  9. Alfonso Decimo says:

    Phil – I think you raise a great issue. A quick review of the facts shows the investigation and the interview (presumably one attachment to the investigation) were received into evidence, not simply referenced in the questions and testimony. So, we can also presume the government counsel for the Art. 32 first secured permission from the release authority for that system of records. However, the Article 32 and its exhibits is not yet released to the public. Unlike Article III courts, the court-martial record of trial (including the Article 32 report and its attachments) are agency records, which are not releasable under the FOIA until it is a complete record, normally after appellate review. However, however (can you have two “howevers”?), the JAGMAN investigation must have been already approved for its ultimate public release, so a FOIA request to the (different) release authority for JAG investigations should succeed. After a quick check for the applicable System of Records Notice (SORN), the answer to that FOIA request would apparently state the record is also not complete until final adjudication (including appellate review), so its not releasable either.  You’re welcome; I just saved you about nine months of FOIA correspondence.

  10. Vulture says:

    My guess is the proposal, from the Senate version I recall, to NDAA 16 for more open access to court-martial proceedings is something most here support.

  11. Phil Cave says:

    AD.  Thanks, but I hadn’t planned any FOIA letters.  IMHO this is no longer an ethics issue for the defense, nor is it a FOIA issue.  Some may argue the issue has jumped the shark, but it’s now an issue of transparency and openness of a 32, much more in line with a long line of cases where appellate courts have dived deep.

  12. Phil Cave says:

    Huuum.  Who could have guessed.  An amicus filing in this petition case.
     
    http://www.court-martial-ucmj.com/uncategorized/bergdahl-v-burke/

  13. Alfonso Decimo says:

    Phil – I read the amicus brief. Mostly, it argues what has already been well-established; Article 32 hearings must be open to the public.  In the last few pages, the brief argues the right of public access “extends to documents submitted as part of pretrial proceedings, no less than public acces to the courtroom itself.” Despite the federal court citations, it will be extraordinary for CAAF to extend public access (before final adjudication) to those documents for Article 32s. My bet is the news media will need to wait for those documents via FOIA, unless they are leaked.

  14. Weirick says:

    True federal courts don’t require FOIA. PACER makes all documents available to the public, barring a protective order. The “final adjudication” rule serves no ligitimate purpose, other than “that’s how we have always done it.”