Lawyers for alleged deserter Sgt. Bowe Bergdahl are asking the military's highest court to partially lift the stay on his court-martial proceedings.
On Friday, Bergdahl's defense team, which was already denied a request to partially lift the stay by the Court of Criminal Appeals, filed an appeal to the U.S. Court of Appeals for the Armed Forces. They have asked the high court to lift the stay in all matters not related to a protective order set on classified information.
"An across-the-board stay is not mandatory," according to the defense's appeal. "The burden of the blanket stay falls not simply lopsidedly, but exclusively - and for no good reason - on (Bergdahl). This is totally unfair."
Bergdahl, who walked off a remote base in Afghanistan in 2009 and was subsequently held by the Taliban for nearly five years, is charged with desertion with the intent to shirk important or hazardous duty and misbehavior before the enemy by endangering the safety of a command, unit or place. He has yet to make a plea or decide if he wants a trial by judge or jury.
The court-martial was set to begin in August at Fort Bragg. All proceedings leading up to the trial were put on hold earlier this week.
It stems back to an order from Col. Jeffery Nance, the military judge assigned to Bergdahl's case, mandating prosecutors give access to the defense team to thousands of classified documents. The order was put out two days after a preliminary hearing at Fort Bragg, where both sides argued over access to classified documents.
Prosecutors disagreed with the order, arguing responsibility to provide access to classified documents does not lie within their office, but with the Original Classification Authority, which is the person who determines whether a document is classified. They filed a notice they would appeal the order to the Army Court of Criminal Appeals.
While the appellate court is reviewing the order, prosecutors have also asserted that all trial litigation should be suspended since its other motions also deal with access to classified documents. The motion to stay the case was granted on Tuesday.
Bergdahl's lawyers have said the stay is unfair and will undermine public confidence in the trial.
"No purpose is served by tying the hands of (Bergdahl's) defense counsel and preventing Judge Nance from conducting pretrial proceedings and generally supervising pretrial litigation on matters that have nothing to do with classified information," according to the defense's appeal.
In fact, the defense argues putting a stay on the entire case puts classified documents at risk since Nance won't be able to enforce the protective order he entered.
"The stay of all 'litigation' basically handcuffs him, thwarting his ability to enforce his own order," according to the defense's motion. "It is hard to imagine a better way to undermine the authority of the military judge."
Bergdahl faces a maximum potential punishment of dishonorable discharge, reduction to the rank of private, forfeiture of all pay and allowances and maximum confinement of five years if convicted of desertion. The misbehavior charge carries a maximum potential penalty of dishonorable discharge, reduction to the rank of private, forfeiture of all pay and allowances, and possible confinement for life.
Although he has not spoken publicly, through the popular podcast "Serial," Bergdahl said he walked off his base to cause a crisis that would catch the attention of military brass. He wanted to warn them about what he believed were serious problems with leadership in his unit.
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