In an opinion issued yesterday the Army CCA denies a Government appeal under Article 62 of a military judge’s ruling regarding defense access to classified information in the Bergdahl case.

The opinion is available here.

7 Responses to “The Army CCA denies a Government appeal in the Bergdahl case”

  1. Joseph Wilkinson says:

    Glad to hear they got it resolved in a couple of months, and hope that means the case can move now.
    Those who know:  Is this an unusually short time for an appeal of this nature?  

  2. Philip Cave says:

    JW.  The gubmint wanted it to go at least a month longer.  When oral argument was scheduled for four days after they requested oral argument the gubmint asked for a 30 day delay to get ready.  When ACCA denied the rescheduling, the gubmint asked for reconsideration which was denied.

  3. Monday morning QB says:

    JW.  I think the short time hacks the ACCA gave the G on this one is good evidence of what the Court thought about the merits of this appeal.

  4. Joseph Wilkinson says:

    Thank you, both.   Do you think there’s any subtext to the request for delay?  As far as I can tell, the government’s strongest incentive is to move this thing with all speed. 

  5. Philip Cave says:

    As far as I can tell, the government’s strongest incentive is to move this thing with all speed. 

    JW.  Let’s assume the background:  You have a case involving thousands of classified documents that may be relevant to the:  they are helpful to the prosecution, they are Brady+, they are otherwise discover-able under Art. 46, RCM 701.  However, you are having problems complying with the MJ’s discovery orders in a timely manner.  What do you need — time?
    I’m NOT arguing the gubmint here was being frivolous.  But, if you file a 62 appeal and get a stay of proceedings, what do you get as a collateral effect?
    If you then ask for oral argument, what do you get when there’s a stay in place as a collateral effect?
    Could a cynic or conspiracy theorist argue that to be a subtext?  Perhaps.  The way I read ACCA’s opinion is that the gubmint hasn’t exhausted its remedies with the trial court yet and perhaps pulled the trigger too early.  

  6. Monday morning QB says:

    JW, concur with the esteemed Mr. Cave.  What’s disturbing about all of this is the G writ large has had a horrible history with cases in which classified evidence is present.  See the  King case.  After King, all of the services instituted independent law sections on national security cases or cases where classified evidence would be at issue.  And there are classified evidence litigation training courses every year.  Yet apparently nobody saw this train coming down the tracks in the Bergdahl case, and the Army govt’s filings, at both the trial and appellate level, look like inexperienced folks are at the helm.  Either that or they are not making use of the multiple resources available to help them to avoid these traps. 

  7. Joseph Wilkinson says:

    Thank you both again — I hadn’t considered that possibility at all, and hope they’re making good use of the time now.