In the ongoing case against former Taliban prisoner Sergeant Bergdahl, there have been four separate petitions for extraordinary relief. The first (discussed here) (denial noted here) sought to disqualify General Milley as the convening authority because he was asserted to be an accuser. The second (discussed here) (also denied) asserted procedural irregularities in the early handling of the case. The third (discussed here and here) sought a writ of mandamus to permit the public release of the investigation into the circumstances of Bergdahl’s capture. The fourth (discussed here) sought relief from an order prohibiting Bergdahl or his counsel from releasing that investigative report, and is particularly notable in that a companion petition was filed by multiple media organizations that seek access to the report.

Last week, in what I think is an astonishing order, CAAF dismissed the third petition:

No. 16-0059/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority, and United States, Appellees. CCA 20150624. On consideration of the writ-appeal petition for review of the U.S. Army Court of Criminal Appeals decision on petition for a writ of mandamus, the motion on behalf of the National Institute of Military Justice for leave to file a brief as amicus curiae, the motion of the Center for Constitutional Rights to file a brief as amicus curiae, the motion of NBC News, a division of NBCUniversal Media, LLC, for leave to file a brief as amicus curiae, and Appellant’s motion for an expedited hearing, it is ordered that the motions of the National Institute of Military Justice, the Center for Constitutional Rights and NBC News to file amicus curiae briefs are hereby granted, that the writ-appeal petition is hereby dismissed, and that the motion for an expedited hearing is hereby denied as moot.

(emphasis added). CAAF’s order is what Alton Brown would describe as wafer thin, but the decision to dismiss the third petition without explanation (such as, perhaps, that the court considers it moot in light of the fourth petition), and also to dismiss it rather than deny it without prejudice (as the first and second petitions were) is really very surprising. It’s also puzzling.

Dismissal is appropriate when the court lacks jurisdiction, such as in The Center for Constitutional Rights, Glenn Greenwald, Jeremy Sachill, The Nation, Amy Goodman, Democracy Now!, Chase Madar, Kevin Gosztola, Julian Assange, and Wiki[shhh] v. The United States of America and Chief Judge Colonel Denise Lind, 72 M.J. 126 (C.A.A.F. 2013) (CAAFlog case page). Notably, since CCR was decided, I’m aware of just six extraordinary writ petitions / appeals that were dismissed by CAAF:

  1. Wilson, No. 13-8038/AF: Dismissed “for lack of jurisdiction” on August 2, 2013;
  2. Forry, No. No. 13-8037/AR: Dismissed “for lack of jurisdiction” on September 23, 2013;
  3. [LC], No. 14-8007/NA:  Appellant’s “motion to dismiss the writ-appeal petition” granted on January 15, 2014;
  4. Roukis, No. 15-0170/AR: Dismissed “for lack of jurisdiction” on November 18, 2014;
  5. Andreozzi, No. 15-0403/AR: Dismissed “for lack of jurisdiction” on March 21, 2015;
  6. And now Bergdahl, No. 16-0059/AR: Dismissed for no specified reason on November 23, 2015.

One of these is not like the others (and Bergdahl did not move for dismissal).

5 Responses to “CAAF dismisses (?)(!) Bergdahl’s third writ-appeal petition”

  1. Commentariat says:

    the real question is what the defense hopes to accomplish with all this.  Presumably file as much nonsense as possible but then use CAAF’s summary denials/dismissals to convince an Article III judge how unfair the military is.  Might work.

  2. President Camacho says:

    I have to ask the question – why does the Government fight this – just release the darn thing.  Why create issues? Managed to make the media more interested. Denying release just makes it look like the gov’t is hiding something.  Any info in the investigation pertaining to the case has come out or will come out if relevant (and beneficial to a party).  If redactions are needed, there is a process for that.  It amazes me again and again how the public/media/individuals ask for copies of investigations and they are denied for reasons which are sometimes (I’ll be fair and say) for less than honest reasons/basis.
    These are not the droids you are looking for.

  3. Commentariat says:

    Mr. President, you are presuming a competency and ability to see the larger picture that simply doesn’t exist.

  4. President Comacho says:

    Commentariat
    i think you are correct. The main thought is “please get promoted- what can I do in this situation to guarantee promotion to O-7 or 8 or 9”
    ive been privy to the conversations which start like this:
    Senior Officer: “JAG we can’t release this  we just can’t  I need you to come up with a way to deny this FOIA request”
    And inevitably a basis for denial will be found – not a legitimate basis but hey we have to keep the Generals happy
     
    This all begs another question -why do the 15-6 at all if you don’t want it released? why not let CID screw it up and lay any blame at their feet
    Hell, CID would probably title him for sexual assault
     
     

  5. Jack Burton says:

    Pres C:  I agree that you are presuming competence.  As with all high profile cases, the Army is incapable of handling this one as well and will find a way to screw it up. 
     
    Broadly skilled: 1 inch deep and 1 mile wide in knowledge of everything but possessing expertise in nothing.