Bergdahl lawyers ask judge to remove soldier’s case from docket
By COREY DICKSTEIN | STARS AND STRIPES Published: July 29, 2016
WASHINGTON — Attorneys for accused Army deserter Sgt. Bowe Bergdahl have asked a judge to remove the soldier’s case from the service’s court calendar after prosecutors asked for additional time to review thousands of documents containing classified evidence.
Prosecutors in a motion Monday asked the judge overseeing the case, Army Col. Jeffery R. Nance, to grant them a 90-day extension to collect about 10,000 classified documents from six government organizations that are examining the files to determine whether they can be provided to Bergdahl’s lawyers. The government could ask the documents be withheld for national security reasons, which must be requested by Aug. 1.
But defense attorneys, in their response Thursday, called the motion a “mislabeled request for a continuance,” or stall in the proceedings, and accused the prosecution of “not having gotten its ducks in a row.”
“The case should be removed from the court’s calendar until all invocations of [privilege] have been made and the process completed, rather than doing things piecemeal,” the defense, led by Bergdahl’s civilian attorney Eugen R. Fidell, wrote. “… The parties should be directed to report to the court when they are ready for trial.”
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. In March 2015, the Army charged him with desertion and misbehavior before the enemy, and those charges were referred for a general court-martial in December.
The trial is scheduled to begin in February at Fort Bragg, North Carolina. It was initially slated for August, but Nance delayed it following a roughly three-month pause also related to classified information.
The mass of some 300,000 classified and unclassified documents spanning Bergdahl’s initial enlistment in 2006 through his controversial return in 2014 has complicated the case. Despite their continuation request, prosecutors still believe the trial can occur on time.
“The government is not seeking a continuance and does not believe that granting the requested extension would result in any delay to the currently scheduled February 2017 trial date,” assistant prosecutor Army Maj. Jerrod B. Fussnecker wrote in the motion.
Going to trial on time is not likely, said Eric Carpenter, an assistant law professor at Florida International University and former Army defense attorney and prosecutor.
“The government wants to have its cake and eat it too,” Carpenter said. “They want the trial to start on time but also want a delay in an important pretrial deadline. The problem is that many other deadlines hinge on that one, and if the military judge grants it, the trial will also likely be delayed.”
The 90-day extension request would give the government agencies reviewing the documents time to do so, Fussnecker wrote. Any claims of government privilege in the case must be reviewed by Nance.
So far, about 15,000 documents have been provided to defense lawyers and prosecutors are preparing to turn over another roughly 10,000 documents, Fussnecker said.
It’s a difficult position for the prosecutor, Carpenter said.
“He is waiting on heads of other organizations to decide whether to claim the privilege, and many of them not are under the control of the Department of Defense,” he said.
Bergdahl is scheduled to return to court Aug. 22 for a pre-trial hearing. He 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. A conviction on the more serious misbehavior charge could send him to prison for the rest of his life.
Bergdahl remains on active duty in a desk job at Joint Base San Antonio in Texas.
On June 30, 2009, he was captured by Taliban fighters after leaving his post in eastern Afghanistan’s Paktika Province. He told Army investigators that he did not intend to desert the service, but he willingly left Observation Post Mest to cause a disturbance. He said he wanted the attention of senior officers to file complaints about his chain of command.
Haqqani Network militants held and tortured Berghdal for five years 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 in Cuba.