Bergdahl attorneys seek greater access to information
By COREY DICKSTEIN | STARS AND STRIPES Published: July 5, 2016
WASHINGTON — Alleged Army deserter Sgt. Bowe Bergdahl’s attorneys have asked a military judge for greater access to information held by prosecutors in a series of motions that contend the Army has treated their client “differently” from other soldiers accused of crimes.
Bergdahl’s lawyers, Eugene R. Fidell and Lt. Col. Franklin D. Rosenblatt, requested Judge Col. Jeffery R. Nance direct prosecutors to turn over a broad array of information that could benefit the soldier’s defense, discredit potential witnesses or prosecutors have flagged as potential evidence. Additionally, the attorneys asked the judge to compel prosecutors to provide several specific documents, including Bergdahl’s complete enlistment file and correspondence between senior government and military officials who have discussed Bergdahl.
The requests were filed in recent days in a series of three motions expected to be discussedThursday before Nance when Bergdahl returns to a Fort Bragg, N.C. courtroom for a pre-trial hearing.
Fidell and Rosenblatt contend they have not been granted proper access to the informationthat they need to provide Bergdahl with the proper legal defense to which he is entitled. In their motions, the attorney’s wrote Bergdahl’s case has been subject to an extraordinary amount of influence from senior Army leadership and powerful lawmakers.
“This case is among the most politically charged courts-martial in Army history,” the soldier’s lawyers wrote in a motion dated June 30. “Attuned to the public and political pressure, Army officials have treated this case differently from those of other similarly situated accused soldiers. As a result, the defense has a duty to investigate all actions that reflect or may constitute unlawful command influence.”
Such actions, the attorneys wrote, include extraordinary interest in the case from members of the Senate and House Armed Services Committees, “central control” of the case by senior Army leaders, moving the case to Forces Command, which had “no relationship to the accused,” and the service’s “willingness to bear any cost to prosecute the accused and to treat his case as a higher priority than any other criminal case in the Army.”
Bergdahl, 30, was captured and held for five years by Taliban-linked militants in Pakistan after leaving his post in eastern Afghanistan in June 2009. He faces charges of desertion and misbehavior before the enemy. A conviction of the more serious misbehavior charge could send him to prison for the rest of his life. The court-martial is scheduled to begin Feb. 6 at Fort Bragg.
Bergdahl’s case is complicated by a mass of classified and unclassified data that spans his initial entrance into the Army in 2006 through his controversial return in 2014. The prosecution holds more than 1.5 million pages of evidence, Army prosecutor Maj. Justin C. Oshana wrote in a June 30 motion. Prosecutors have provided 132,000 pages, including 89,000 classified pages – to Bergdahl’s attorneys and will turn over another 150,000 pages to them in the future, Oshana wrote.
The documents that prosecutors have turned over and others that they are preparing to send, Oshana wrote, contain all the information they are legally required to provide defense attorneys. He added the defense has not provided sound reasoning for access to additional files, much of which contain “classified information about matters totally unrelated to this case” that Bergdahl’s attorneys do not “need to know.”
Bergdahl was arraigned on charges of “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty” in December, but he has yet to enter a plea.
Bergdahl remains on active duty in a desk job at Joint Base San Antonio, Texas.
On June 30, 2009, Bergdahl was captured by Taliban fighters after leaving his post in eastern Afghanistan’s Paktika Province. Three months after Bergdahl was released, he told then-Maj. Gen. Kenneth R. Dahl, appointed Army investigator for the case, that he’d willingly left Observation Post Mest to create an incident that would place him in front of a general officer, with whom he hoped to discuss problems he saw with his chain of command. Bergdahl told Dahl that he did not intend to desert the Army.
Bergdahl was held and tortured for five years by Haqqani Network militants before he was released to American special operations forces in May 2014 after the White House approved the release of five senior-level Taliban detainees to Qatar from the detention facility at Guantanamo Bay, Cuba.