The defense team representing Sergeant Bowe Bergdahl has won access to hundreds of thousands of classified documents in the early stages of Bergdahl’s court martial trial. A military judge had previously ordered that all classified information that the government may offer into evidence at trial was to be provided to defense counsel, which the prosecution appealed. Now, the defense team will be able to view the classified information and continue to build Bergdahl’s defense for his upcoming court martial.
The U.S. Army Court of Criminal Appeals panel denied the prosecution’s appeal to limit access to the classified information. Prosecutors argued that the defense had to obtain Original Classification Authority before they would be able to view the classified documents. Original authority is limited to the president, vice president, or agency head designated by the president to classify information. Instead, the three-judge panel ruled that “Once defense counsel seek access to classified information, it is incumbent on the government to ensure that any access to classified information is provided in accordance with applicable law.”
Bergdahl was captured in Afghanistan in 2009 after leaving his combat outpost in Paktika Province. For the next five years he was tortured at the hands of the Taliban, chained to a bed, and at times, locked in a small metal cage. He was finally released in May 2014 after a controversial exchange for five accused terrorists. Since his release, he has been charged with one count of desertion and one count of misbehavior before the enemy in violation of Articles 85 and 99 of the Uniform Code of Military Justice. He could face a maximum penalty of life in prison.
During Bergdahl’s Article 32 hearing, the presiding officer recommended a special court-martial. Maj. Gen Kenneth Dahl, who investigated Bergdahl’s case, testified that jail time was inappropriate, finding no evidence that Bergdahl was “sympathetic to the Taliban.” However, in breaking from the recommendation, Gen. Robert Abrams ordered a general court-martial for Bergdahl.
The court martial was ordered in December, but the proceedings were stayed in February due to the dispute over access to classified information. The latest ruling means that the case can now continue. The trial had been scheduled to start in August, however, the months-long delay has put the progress of the case far behind schedule. The next pretrial hearing is scheduled for May 17 at Fort Bragg in North Carolina.
Bergdahl’s attorney, Eugene Fidell, previously said that they’d been given access to less than 1% of the classified information related to the case. Now that the government has been ordered to release the information, the defense team will have to pour through as many as 300,000 pages of documents. Fidell is still not sure what information the classified documents may include.
“It’s anybody’s guess,” said Fidell. “The government has not told us what it’s giving us. The real question is how long the government is going to take to get these things to us.” There is also still a chance that the government might appeal the latest decision.