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).

8 Responses to “CAAF will not order the release of documents in the Bergdahl case”

  1. Disappointed says:

    should not be unanimous.  Goldsmith has nothing to do with it.

  2. Awol says:

    Is this the only remaining option?

  3. Cloudesley Shovell says:

    Hello Disappointed:
    Yours is a curious comment.  I’m sure you realize that military courts are creatures of Article I, created only by statute, and as such have strictly limited jurisdiction that is circumscribed by said statute.  Goldsmith is a Supreme Court case that reminded CAAF that it is indeed of court of limited, not general, jurisdiction.  Why then is it inapplicable?  You seem to disagree with the decision here?  Please explain, using the appropriate statutes, why CAAF erred.
    And speaking of statutes, people seeking documents from the government typically use FOIA.  Have the petitioners done so?  They can go sue for release of the documents in Federal District Court.  If not why not?  Are they not serious?  Or was this petition just a tool to get the desired result–an adverse ruling with which to disingenuously smear the military justice system in advance of Bergahl’s trial?
    One wonders.
    Kind regards,

  4. Jack Burton says:

    The military justice system doesn’t need any help in being smeared.  Those involved do an adequate, wait that is not right, they do an outstanding job smearing all on their own.  Remember Stellato, Sinclair, Martinez, etc, etc, etc?  This will probably turn into the same mess as those.  Broadly skilled indeed.

  5. John O'Connor says:

    I wish we still had “like” buttons so I could like Sir Cloudesley’s comment.

  6. Alfonso Decimo says:

    I also like the Cloudesley posting, but the answer to any FOIA request will be that the record is not a complete record until the CCA Clerk receives it for appellate review. I believe the District Court will support that rationale. So, any FOIA suit would be as fruitless as the subject petition.

  7. Now There's a Referral says:

    The appellate courts rightly found they had no jurisdiction to order the convening authority to release documents to the public prior to referral.  They, as Goldsmith said, don’t oversee the administration of justice in general.  But, both courts expressly premised their decision on the fact that, at the time the writ petitions were being decided, “there is not yet – and may never be – a court-martial.”  They were being asked to review the order of a commander when that order did not yet have any clear relation to any court-martial proceeding.  The analysis on the question of jurisdiction very well may be different now that charges have been referred.  It almost certainly would be different if the petitioners first sought relief from the detailed military judge and had their requests rebuffed at the trial level.  That all being said, DoD should have just released the material the press requested.  It was stupid not to.  DoD has only made, yet more, unnecessary enemies in the press corps at a time when numerous national politicians, during election season, are keen to slash the military budget.  In order to soften the public for their proposals, those politicians have been exploiting press allies who are interested in undermining the military’s respect in the eyes of members of the public.  That serves the political agenda of certian congressional delegations well.  Picking this fight with the press was poor national defense strategy.  We have systematically set about further alienating ourselves from the public by constantly drawing negative press attention – whether it’s regarding our handling of weapons system programs, detainee programs, a supposed epidemic of sexual assault which we ourselves trumpeted in a misguided attempt to draw additional congressional funding (which never came), and now the perception that we oppose public access to military justice proceedings.  It’s as if we want Congress to cut our operating budgets, dismantle our military justice system, and “adjust” our retirement “entitlements.”  We’re doing this to ourselves.  It’s so stupid that I’m starting to think that maybe we deserve to reap what we’re so vehemently (though blindly) sowing.

  8. Weirick says:

    We have now had both referral and arraignment. With the obviously legitimate redactions for PII and classified information, there is no reason for the CA to block release of the document. If this was a federal court the document would be freely available on PACER.