Judge allows Bergdahl lawyers to get top generals' emails

FORT BRAGG, N.C. — A military judge agreed Thursday to give Army Sgt. Bowe Bergdahl access to emails from several top commanders as defense attorneys probe for evidence of whether his prosecution on charges of desertion and misbehavior before the enemy was unfairly swayed by high-ranking officials.

The judge, Col. Jeffery Nance, ordered the government to give defense attorneys emails regarding the case that were sent and received by the head of U.S. Army Forces Command and his predecessor, along with communications by others involved in decisions about how Bergdahl's case has been handled.

Nance also "strongly suggested" that prosecutors help defense attorneys arrange an interview with Gen. Robert Abrams, the four-star leader of Forces Command who decided in December to proceed with the general court martial. Abrams declined a defense request for an interview in June.
"They need to be able to sit down with him and ask him some pointed questions," Nance said during the pretrial hearing.

The defense had sought Bergdahl-related emails from dozens of military and government officials — including former secretaries of defense — but Nance declined the request for most of the list.

One of the prosecutors, Army Maj. Justin Oshana, told the judge that defense attorneys were asking for what amounted to an "all-access pass" to top officials' emails.

Defense attorneys have said in court filings that they are gathering information on whether the case has been tainted by unlawful command influence. They have cited evidence of private discussions between high-level military and government officials and public remarks about the case by Sen. John McCain, who leads the Senate Armed Services Committee.

After Thursday's hearing, defense attorney Eugene Fidell said he was pleased with the outcome.

"A number of the documents the judge said we have a right to see could be quite important," he told reporters.

Earlier in the day, the judge also agreed to give Bergdahl's attorneys more information on why his military service was extended by a decade.

Army Lt. Col. Frank Rosenblatt, a defense attorney, said that Bergdahl was eligible for a discharge in 2011 and should have been given the option to re-enlist or leave the military upon his return from captivity in 2014. Instead the government has chosen to keep him on active duty until 2022.

"This matter was handled entirely irregularly," Rosenblatt told the judge.

Nance ordered prosecutors to request emails about the extension decision from Army human resource officials and turn over what they find to the defense. Prosecutors had argued that the request was too broad.

Bergdahl, who's from Hailey, Idaho, faces charges of desertion and misbehavior before the enemy after walking off his post in Afghanistan 2009 and winding up in enemy captivity for five years. The Obama administration was criticized for swapping Guantanamo Bay detainees for Bergdahl.

The trial is scheduled to begin in February 2017.

Nance is also requiring prosecutors to add further labeling and organization to hundreds of thousands pages of documents that they're giving the defense. The defense had argued that some file names were simply numbers and asked for other help in weeding out irrelevant information.

"You're not providing them in a way that makes it efficient," Nance told prosecutors. "They could eventually plow through all this stuff ... and then we would be trying the case in 2020."

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