Army protests in court after Bergdahl's legal team releases transcript online
By DAN LAMOTHE | The Washington Post | Published: March 18, 2016
Army lawyers have protested a decision by the legal team of accused deserter Sgt. Bowe Bergdahl to release the entire 373-page transcript of his interview with a general officer, saying the document's disclosure includes sensitive information in the controversial case and raises questions about whether Bergdahl's lawyers will appropriately handle classified information.
The objections were included Thursday in a court filing with the Army Court of Criminal Appeals. Army lawyers argued in it that they should be granted an extension until March 29 to respond to an appeal in the case "due to recent actions by the trial defense team and the immediate need to protect the unauthorized release" of information.
Bergdahl, 29, is expected to face court-martial in August at Fort Bragg, N.C., in connection with his disappearance on charges of desertion and misbehavior before the enemy in what has become one of the most sensitive situations involving the U.S. war in Afghanistan.
Bergdahl walked away from his base deliberately, late on June 29, 2009, and was captured within hours by the Taliban. He was released in May 2014 in a controversial swap in which the White House approved the release of five Taliban officials from the military prison at Guantanamo Bay, Cuba.
Army lawyers wrote in the filing this week that Bergdahl's lawyers, led by civilian defense counsel Eugene Fidell, violated a protective order issued in the case that prohibits the dissemination of all information and documents available to Bergdahl and his legal team. It covered all personally identifiable information, which can include social security numbers, phone numbers, financial information or "any other PII which is linked or linkable to a specific individual," according to the order.
"Defense counsel's unwillingness to abide by the terms of a protective order dealing with only PII and sensitive information underscores the legitimate concern as to their access to classified information and whether they will comply with a protective order dealing with classified information," said the filing, signed by three Army lawyers.
The lawyers add that to prevent further disclosures of information, the Army intends to file a request for a writ of prohibition under the All Writs Act, a 1789 law that gives the government power to require things not covered by other law. The statute was notably cited last month as the FBI put pressure on Apple to unlock the iPhone used by one of the shooters in the attacks last year in San Bernardino, Calif.
Fidell said Friday afternoon that he has been informed that the Army's request for an extension to March 29 has been denied. He also disagreed that any personally identifiable information was released in the transcript posted online this week, and noted that Army lawyers previously disclosed a couple pages of the document in a court filing.
"If and when the government carries through on its threat to seek an extraordinary writ, we will respond at the appropriate time," he said. "In our view, transparency is essential to public confidence in the administration of military justice, and this case is no exception."
The transcript of Bergdahl's multi-day interview in August with then-Maj. Kenneth Dahl outlines many aspects of Bergdahl's case, and includes the soldier speaking at length about his reasoning for leaving his base alone and without authorization in an attempt to cause chaos and get the attention of a senior officer to express concerns about his battalion commander and other leaders in his chain of command. The transcript was posted online by Bergdahl's lawyers late Wednesday.
"This website has been created by the defense in the general court-martial case of Sergeant Robert B. (Bowe) Bergdahl in response to the high level of public interest in the case," the website states. "An unofficial website is necessary because the government has not established an electronic reading room for the case and the PACER (Public Access to Electronic Court Records) system used by the civilian federal courts does not apply to courts-martial."
But many details in Bergdahl's transcript have been reported previously. Some of them emerged during Dahl's appearance at a preliminary hearing in the fall in Bergdahl's case, and others surfaced through news reporting, including by the podcast, "Serial."
Dahl, now a three-star general, said in the hearing in September that he found Bergdahl credible, but disillusioned with his unit and self-deluded about his abilities to sneak away from his base and not get caught or killed until appearing on a larger base 20 miles away to report problems he saw in his unit. He recommended against Bergdahl serving any prison time, citing his torture at the hands of the Haqqani network, the group in Pakistan that held him during his long captivity.