Bergdahl lawyers: Stalled court proceedings 'unfair' to accused soldier

By COREY DICKSTEIN | STARS AND STRIPES Published: February 11, 2016

WASHINGTON — Lawyers for Bowe Bergdahl said Wednesday that the Army sergeant’s right to a “truly public trial” are in jeopardy if an appeals court does not allow the case to proceed now.

Bergdahl’s lawyers are requesting the appeals court partially lift a stay granted prosecutors in the case and allow a judge to rule on releasing documents that they believe are important to his trial. Bergdahl, 29, faces a general court-martial on charges related to leaving his post in eastern Afghanistan in 2009.

The stay in the case was requested by prosecutors who asked the appellate court to consider overturning a ruling on how classified evidence is provided to Bergdahl’s defense team.

On Tuesday, the U.S. Army Court of Criminal Appeals halted indefinitely all proceedings in Bergdahl’s case, which his lawyers have labelled “unfair” in a motion filed Wednesday to the court.

Bergdahl’s lawyers, Eugene Fidell and Lt. Col. Franklin Rosenblatt, contend in the motion that the stay impairs public confidence and hinders their ability to prepare for the trial scheduled to begin Aug. 8 at Fort Bragg, N.C. They said the stay “may freeze this litigation for a considerable period of time – certainly weeks, possibly months – and in the process seriously threaten the trial date.”

Bergdahl’s lawyers asked the court to allow proceedings to continue concerning a Feb. 4 motion that they filed to the judge overseeing the court-martial, Col. Jeffrey R. Nance. That motion asked Nance to lift a protective order issued in March that limits what unclassified documents can be shared with the public.

The lawyers primarily seek to release the executive summary of a comprehensive Army investigation into Bergdahl’s case and a transcript of service interviews of him. They argue those documents counter widely disseminated claims, including by Republican presidential candidate Donald Trump, that American servicemembers were killed searching for Bergdahl and statements calling him “a traitor.” His lawyers contend those accusations infringe on his right to a fair trial.

“The continuing Niagra of sustained negative publicity about Sgt. Bergdahl has been extraordinary,” the soldier’s lawyers wrote. “By any measure, he has been made one of the most vilified and hated people in the United States.”

Bergdahl has not spoken publicly since his release from the Taliban in May 2014 in a controversial exchange for the release of five senior-level Taliban detainees from Guantanamo Bay in Cuba.

Portions of an interview he gave with a Hollywood screenwriter have been aired on popular podcast “Serial,” in which Bergdahl admits leaving Observation Post Mest in order to create a crisis. He believed it was the only way he, then a private first class, could gain an audience with a general officer to warn of issues in his chain of command that he considered troubling.

The Army has charged Bergdahl with “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty.” He faces up to life in prison if convicted of the more serious misbehavior charge. The desertion charge carries a maximum penalty of five years in prison, a dishonorable discharge, reduction to the rank of E-1 and forfeiture of all pay and allowances.

Bergdahl was arraigned at Fort Bragg in December, but he has not yet entered a plea.

Twitter: @CDicksteinDC

Accused Army deserter Sgt. Bowe Bergdahl is shown in this undated file photo.
U.S. Army


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