I still don’t know what to make of the government’s case against Sergeant Bowe Bergdahl (of Taliban detainee transfer fame) for charges of desertion and misbehavior before the enemy—or the entire Bergdahl affair, more generally. Part of why it’s hard to form meaningful conclusions is because of some very strange secrecy surrounding the government’s investigation—secrecy that is now being challenged by both Bergdahl and a cohort of media organizations (led by Hearst Newspapers and the New York Times) in the Army Court of Criminal Appeals (ACCA). In the post that follows, I aim to briefly introduce the procedural posture in which the public access issue has arisen, why the government’s position makes so little sense, and why the resolution of this issue will have such significant consequences for military tribunals (both courts-martial and military commissions) going forward. But lest the analysis that follows bury the lede, the government’s position on what the public is and is not allowed to know about this case doesn’t make any sense—and only makes it harder for folks to form their own judgments about the charges (and, ultimately, Bergdahl himself). 

I.  The Bergdahl Proceedings and the Background

As folks may well remember, charges were sworn against Bergdahl back in March 2015. Unlike in civilian courts, the accused before a general court martial has a statutory right to a preliminary hearing (under Article 32 of the UCMJ), which was conducted on September 17 and 18. Two of the most important documents received into the record at that hearing were a report filed by Major General Kenneth Dahl—the investigating officer appointed under Army Regulation (“AR”) 15-6—and a 371-page transcript of Dahl’s interview with Bergdahl. Not only are both of these documents unclassified, but they were repeatedly referred to in open court in the presence of members of the public and the press, and, if media accounts are to be believed, are far more sympathetic to Bergdahl than might otherwise have been expected. Not surprisingly, then, Bergdahl’s counsel has sought public release of these documents.

The problem is that, thanks to a standing protective order in Bergdahl’s case (Exhibit 1 of this PDF), there’s a substantial argument that unauthorized disclosure by Bergdahl’s counsel would violate the order—and, as such, the Army Rules of Professional Conduct. Bergdahl’s counsel thus asked Lieutenant Colonel Peter Burke—the Convening Authority in Bergdahl’s case—to either provide authorization or release the documents himself, but Burke concluded that he lacked the authority to do so (Exhibit 2 of this PDF). Bergdahl’s counsel then sought the advice of the Department of the Army’s Professional Conduct Council—which, after 82 days, refused to rule, concluding that the matter ought to be resolved by (you guessed it) Colonel Burke.

That’s the point at which Bergdahl filed for mandamus relief from the ACCA, arguing that, insofar as the Rules for Courts-Martial create a strong presumption that preliminary hearings ought to be public, it follows that unclassified documents considered as part of public preliminary hearings should also be public given the well-established constitutional rights of both the public and the defendant to public access to judicial (and quasi-judicial) proceedings. Hearst Newspapers, the New York Times, and a host of additional media organizations subsequently filed their own petition for mandamus relief in the ACCA, also seeking public release of the AR 15-6 report and transcript.

The government opposed mandamus relief in Bergdahl’s case, arguing that (1) Bergdahl’s right to a public preliminary hearing does not bring with it a right of access to all documents considered therein; and (2) Bergdahl has other avenues of relief, including a FOIA-like procedure authorized by AR 15-6 (and FOIA itself), and, if Bergdahl’s case goes to trial, the ability to seek release of the documents from the presiding military judge. Curiously, as Zachary Spillman pointed out at CAAFlog, the government did not argue that the documents were protected by Mil. R. Evid. 506, which allows the government to withhold from public disclosure even unclassified documents “if disclosure would be detrimental to the public interest.”

Finally, as if all of this weren’t enough, this Monday, Lieutenant Colonel Mark Visger (who presided over Bergdahl’s Article 32 hearing) filed his own report and recommendation in Bergdahl’s case. And although Colonel Visger’s filing was also unclassified, it, too, has been withheld from the public (without an invocation of MRE 506).

II.  Why The Government’s Arguments Are So Weird…

It seems to me that one of two things has to be true: Either the government has a good reason for not releasing these documents, or it doesn’t. To be sure, it’s difficult to imagine what such a good reason could be given the open nature of Sergeant Bergdahl’s Article 32 hearing, the testimony of General Dahl, and the repeated references throughout that hearing to the very documents in question. But I’m willing to concede at least the possibility that there is some legitimate basis for the government’s intransigence to date–other than the off-putting visual of different actors all claiming they lack the authority to act. Perhaps there is at least some material in these documents that is sensitive; perhaps there is some material that’s properly protected by specific evidentiary privileges (like MRE 506). Even then, the existence of such material ought not to justify complete withholding (as opposed to the release of properly redacted versions of the documents), but what’s so strange about how matters have transpired thus far is that no such legitimate basis has been articulated whatsoever–or even alluded to.

In ABC, Inc. v. Powell, the Court of Appeals for the Armed Forces (CAAF) held that,

absent “cause shown that outweighs the value of openness,” the military accused is . . . entitled to a public Article 32 investigative hearing. Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 509, 104 S.Ct. 819, 823 (1984); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30 (1980) (“Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.”). Similarly, when an accused is entitled to a public hearing, the press enjoys the same right and has standing to complain if access is denied.

Thus, the putatively open question presented in Bergdahl’s case is whether the right to a “public Article 32 investigative hearing” carries with it a right to public disclosure of all documents introduced in public at that hearing absent some specific justification for keeping the documents out of public scrutiny. But if Powell means what it says, I find it hard to see how the latter proposition doesn’t follow from the former, as a matter of both the press’s First Amendment right and the defendant’s Fifth Amendment right of public access.

The question then becomes whether the protective order, by itself, provides a sufficient basis for non-disclosure. Frankly, I don’t see it. As Powell explained, “[e]very case that involves limiting access to the public must be decided on its own merits. Furthermore, the scope of closure must be tailored to achieve the stated purposes and should also be ‘reasoned,’ not ‘reflexive.’ Civilian jurisdictions have similarly protected the right of public access to criminal trials and have required articulated and compelling factors to justify closure.” In other words, the existence of the protective order isn’t enough; the question is whether, insofar as it prohibits disclosure of these materials, the protective order is “tailored to achieve the stated purposes.” Given that the protective order itself asserts that its purpose is to protect Sergeant Bergdahl’s privacy rights, and that any tailoring argument is incompatible with the public discussions of these documents at the Article 32 hearing, it seems pretty obvious that the protective order would be an insufficient ground upon which to justify non-disclosure under Powell–and that, insofar as the protective order does bar disclosure, it raises serious First and Fifth Amendment concerns. Again, perhaps the government has some other argument about why non-disclosure is justified, but they haven’t yet made it.

III.  Why This All Matters

All of this matters, of course, to the fraught politics of the entire Bergdahl affair, which I have to think could only benefit from greater transparency and disclosure of the government’s own investigation and interview. But on a larger scale, the Bergdahl case is now the third high-profile military trial in the past three years to raise novel public access issues–along with the Manning court-martial and the 9/11 trial in the Guantánamo military commissions. In both of those cases, public access was denied on a far-more-categorical level than Powell contemplates, and third-parties (the Center for Constitutional Rights in Manning’s case, and the ACLU and a group of media organizations in the 9/11 case) sought to challenge those denials through petitions for ordinary relief. CCR’s claim was dismissed by CAAF on jurisdictional grounds (which I’ve heavily criticized elsewhere), and the ACLU’s and media groups’ claims were dismissed by the Court of Military Commission Review on ripeness grounds.

In other words, Bergdahl now squarely raises the merits question about Powell‘s scope that military courts sidestepped in the Manning and 9/11 cases, i.e., just how much specificity the government must provide in order to justify the withholding of materials from public disclosure in military trials. And unless the ACCA punts (perhaps by relying on similarly dubious jurisdictional reasoning), one can only hope that it will resist the temptation to hold the government to less of a burden than it faces in even the most sensitive civilian criminal prosecutions, which Powell certainly seemed to suggest applies with equal force to the military.