In November, in this post, I noted two writ petitions in the Bergdahl case that sought to compel public access to documents introduced during the Article 32 preliminary hearing. One petition was filed by Sergeant Bergdahl, and the other was filed by a group of media organizations. The Army CCA rejected both petitions, findings that it did not have jurisdiction. CAAF has now affirmed the CCA’s decisions.
CAAF denied Sergeant Bergdahl’s writ-appeal:
No. 16-0119/AR. Robert B. Bergdahl, Appellant v. General Robert B. Abrams, and Lieutenant Colonels Peter Q. Burke and Mark A. Visger, U.S. Army, in their official capacity, and United States, Appellees. CCA 20150652. On consideration of the writ-appeal petition, Appellant-Intervenor’s motion for a expedited hearing and motion to suspend rules, and Appellees’ motion to file out of time a response to the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied, and that said motions are hereby denied as moot.
Additionally, CAAF dismissed the writ-appeal filed by the media organizations:
No. 16-0116/AR. Hearst Newspaper, LLC; The Associated Press; Bloomberg L.P.; Buzzfeed, Inc.; Dow Jones & Company, Inc.; First Look Media, Inc.; Gannett Co., Inc.; McClatchy Co., The New York Times Company; Reuters America LLC; WP Company, LLC D/B/A The Washington Post, Appellants v. Robert B. Abrams, General, U.S. Army, in his official capacity as Commander of United States Army Forces Command, Fort Bragg, NC, and General Court-Martial Convening Authority; 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; Mark A. Visger, Lieutenant Colonel, JA, U.S. Army, in his official capacity as Preliminary Hearing Officer for Article 32 Proceedings against Robert B. Bergdahl, Sergeant, U.S. Army; and United States, Appellees. CCA 20150652. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby dismissed for the reasons stated in the decision of the United States Army Court of Criminal Appeals.
(emphasis in original). The reasons cited are:
The jurisdiction of this court to issue process under the All Writs Act is limited to issues having “the potential to directly affect the findings and sentence.” LRM v. Kastenberg, 72 M.J. 364, 368 (2013); 28 U.S.C. § 1651. This court does not have jurisdiction to oversee the administration of military justice generally. Clinton v. Goldsmith, 526 U.S. 529, 534 (1999). Petitioner has not demonstrated that the release of documents to the public, prior to any decision on whether this case should be referred to trial, has the potential to directly affect the findings and sentence.
Hearst Newspapers, LLC, et al., & Bergdahl v. Abrams, Burke, Visger, and the United States, No. 20150652, slip op. at 2 (A. Ct. Crim. App. Oct. 14, 2015).