Bergdahl returns to court Friday; lawyers to battle over classified info, soldiers’ injuries
December 13, 2016
WASHINGTON – The military judge overseeing the court-martial of accused Army deserter Sgt. Bowe Bergdahl will hear from government officials responsible for reviewing massive caches of classified information, which have been the basis for delaying the start of the trial twice.
The judge, Army Col. Jeffery R. Nance, ordered “an accountable representative for any organization” that has not finished vetting sensitive data related to the former Taliban captive’s court-martial to testify Friday when Bergdahl returns to a Fort Bragg, North Carolina courtroom for a pre-trial motions hearing.
Nance will also hear arguments about a motion by prosecutors to include evidence at trial that shows two soldiers were injured during a July 2009 mission to recover Bergdahl in the days after the soldier walked off his post in eastern Afghanistan and was captured.
Bergdahl, 30, has admitted to Army investigators that he willingly left Observation Post Mest without permission, seeking to cause a disturbance that would place him in front of Army brass to air concerns about his chain of command. The soldier was released in May 2014 in a controversial swap for five senior Taliban leaders who had been detained at the U.S. detention facility at Guantanamo Bay in Cuba.
Last year, the Army charged him 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.” The more serious misbehavior charge carries a potential life sentence.
Bergdahl’s trial is scheduled to begin April 18, but the date remains in question because of the large amount of classified data – at least 1.3 million pages – that must be cleared by government agencies before prosecutors can turn it over to Bergdahl’s defense attorneys. Nance has previously delayed the trial --– originally scheduled for August -- twice because of the slow pace at which the data has been vetted.
The judge is expected to question the officials from those government agencies about the pace at which they’ve reviewed secret and top secret documents to determine if they would invoke government privilege to withhold some information from defense attorneys on the basis it could harm national security. Some of that testimony could occur in a portion of the hearing closed to the public, because of the nature of the classified information.
Prosecutors have said at least four agencies – they have identified only the State Department by name – are likely to claim privileges in the case. Claiming such privilege requires the government agency that originally classified the information to review it and submit a summary of the documents alongside the original information to the judge. The judge must then review it and determine if the privilege is warranted.
To date, Nance has granted government privilege to one unnamed agency on five classified documents, according to court documents.
Prosecutors will also have a second chance to convince Nance that evidence showing two soldiers were injured searching for Bergdahl should be included at trial. Nance heard testimony about the soldiers’ injuries at a pre-trial hearing in November, but he expressed skepticism that such evidence should be heard by jurors.
The judge said including the injuries suffered in a firefight in Afghanistan just days after Bergdahl disappeared could cloud jurors’ judgment.
“You’re not entitled to use that evidence if it’s unfairly prejudicial,” Nance said during the November hearing, according to the Associated Press. “This trial becomes a trial about that operation, that mission, and not a trial about what’s on the charge sheet.”
Prosecutors, in a motion filed after the last hearing, said the injuries help prove Bergdahl’s disappearance endangered other troops, which is a portion of the misbehavior charge.
Defense attorneys, in a responding motion, argued the evidence of those soldiers’ injuries should not be included because the government did not prove they were directly related to the charges against Bergdahl, which mandate he endangered a specific unit. Prosecutors have said the injured soldiers belonged to that unit – Task Force Yukon – but the defense argued they had failed to substantiate that.
Additionally, Bergdahl’s lawyers wrote the soldiers were not injured because of their client. They argued they were wounded by the Taliban in a rescue mission that was “severely flawed in so many respects that the infantry officer assigned to conduct the government’s own investigation testified that the mission should never have taken place.”
Bergdahl remains on active duty in a desk job at Joint Base San Antonio in Texas. He has yet to enter a plea on the charges against him.