More Bergdahl Strangeness: ACCA Dismisses Public Access Mandamus Petition

As a follow up to my post this morning about the brewing fight over public access to various documents submitted as part of the Article 32 hearing in the Bowe Bergdahl case, the Army Court of Criminal Appeals (ACCA) has just ruled that (1) it lacks jurisdiction to provide the relief Bergdahl seeks–to wit, a writ of mandamus directed to one of the convening authorities in his case ordering the disclosure of the documents in question; and (2) in the alternative, Bergdahl has not made out his claim for mandamus relief, because (a) other remedies remain available to pursue disclosure; (b) the right to release is not well established; and (c) the rule Bergdahl seeks would have harmful secondary effects.

I’ve written at some length before about the many problems with the approach to mandamus jurisdiction reflected in the ACCA’s first holding. The second holding is much more interesting, as it rests on contestable views about the adequacy of alternative remedies and the scope of a criminal defendant’s right of public access… Suffice it to say, I don’t think this is the last we’ll be hearing of the matter. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).