WASHINGTON — General court-martial proceedings in the case of accused Army deserter Sgt. Bowe Bergdahl have been indefinitely halted by an appeals court over a disagreement in the handling of classified information.
Prosecutors on Tuesday were granted a stay on all further pre-trial proceedings by the United States Army Court of Criminal Appeals, which the prosecution asked to settle a dispute about the process governing access to classified information for Bergdahl’s defense team. The court did not allow defense lawyers to respond before granting the prosecution’s stay request, said Eugene Fidell, Bergdahl’s civilian lawyer.
The judge overseeing Bergdahl’s case, Col. Jeffery R. Nance, ordered prosecutors on Feb. 2 to “immediately” turn over classified information it intends to use at trial to defense lawyers. The prosecution filed its appeal Feb. 5, asking the appellate court to consider overturning Nance’s ruling.
The prosecution, in its appeal, stated it believes the defense must first seek consent from the original classification authority, the senior military official who initially classified the material, before being granted access to any classified information.
While prosecutors have argued such clearance would prevent “unauthorized dissemination of classified information” to protect National Security, Bergdahl’s defense team called the requirement a “needlessly cumbersome double-check process” that is “completely unworkable” in a Jan 26 motion.
In that motion, defense counselors Fidell and Army Lt. Col. Franklin Rosenblatt, wrote Bergdahl and his lawyers have at least a secret security clearance and have agreed to abide by rules set by Nance.
The issue stems from some 300,000 pages of classified information related to the case. Bergdahl’s defense team, so far, has only been granted access to about 900 of those pages, according to its Jan. 26 motion.
In a Feb. 5 email to Nance, Rosenblatt wrote the suspension of pre-trial proceedings and, thus, the defense team’s continued lack of access to classified evidence, hurts their ability to prepare for Bergdahl’s trial, scheduled to begin Aug. 8 at Fort Bragg, N.C.
”We are concerned that the stay creates an impediment to progress on an essential aspect of trial preparation involving hundreds of thousands of pages,” Rosenblatt wrote. “The stay triggered by the government’s appeal materially threatens the trial schedule and the defense’s opportunity to be prepared by the date set for trial.”
It was not immediately clear Wednesday when the appellate court would rule on Nance’s order or when proceedings would resume.
Bergdahl, 29, spent five years imprisoned by the Taliban-linked Haqqani Network after leaving his combat outpost in eastern Afghanistan in 2009. He faces 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.”
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.
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