Upcoming issues in the Bergdahl case

First, thank you to the Prawfs gang for letting me hang out this month.  I'll close with a longer post on some issues that are coming up in the Bergdahl case.

For the last six weeks or so, Sergeant Bergdahl and various media organizations have been asking military appellate courts to order the release of the report from the Army’s administrative investigation into the case.  Bergdahl has a copy of this report; the media does not.  My sense is that the report includes mitigating information about his mental health and probably clears up whether any service members were killed searching for him. 

At the recent Article 32 preliminary hearing, the lead administrative investigator testified in public and was subject to cross examination.  The report was also received into evidence; however, the convening authority “closed” the report by issuing a protective order.  According to Rule for Court-Martial (R.C.M.) 405(h)(3), the hearing should remain open whenever possible and can only be closed if a strict scrutiny test is satisfied (closure must be narrowly tailored to achieve an overriding government interest; no lessor means can be used to protect the overriding interest). 

When Bergdahl asked the convening authority to “open” the report, the convening authority did something bizarre – he said he didn’t have the authority to do that even though he was the one that ordered it closed.  (I don’t think Colonel Nathan Jessup is pulling the strings somewhere in the background.  I couldn’t handle that truth.  Rather, I think the convening authority was saying that he was not going to lift his protective order; that he was construing the request to be a request under the Freedom of Information Act; and that he did not have the authority to act on FOIA requests.) 

Bergdahl and the media organizations then filed for a writ of mandamus with military appellate courts.  This sets up some interesting issues in areas of the law that are still being developed, and the unique military context exposes some of the gaps and seams.

The basic issues are: whether Bergdahl has a right to have this report made public or the media has a right to see it; whether military appellate courts have subject matter jurisdiction to issue a writ; and if they do, whether they should.

Who has what right?

Often, the distinction between the accused’s rights and the media’s rights doesn’t matter:  the media can piggyback on the accused’s claim.  That is what has happened in the Bergdahl case.  Sometimes, though, the accused may not want the information to be made public and won’t join the petition for the writ.  That happened in the Bradley Manning case and that case led to the opinion (CCR) that I refer to in this post.  The holding in that case is limited to that scenario which leaves a lot of the law unsettled.

It’s clear that Bergdahl has a right to an open hearing under R.C.M. 405.  And according to some dicta in military case law (CCR, 72 M.J. 126, 129 (C.A.A.F. 2013)), Berdahl’s Sixth Amendment right to a public trial might even attach to Article 32s. 

What isn’t so clear is whether the media has a First Amendment right to this report.  The military case on this issue (ABC, 47 M.J. 363 (C.A.A.F. 1997)) has been called into question (CCR, 72 M.J. at 129-30) so the issue is still open. 

While the media does have a First Amendment right to attend a trial, this hearing likely isn’t part of the “trial.”  The modern Article 32 looks sort of like a federal preliminary hearing (Congress modeled the Article 32 on the federal preliminary hearing) and one of the main purposes of the hearing is to evaluate probable cause.  And in both federal preliminary hearings and Article 32 hearings (and unlike in many grand juries), the accused has already been charged.

There are a few big differences, though, that make the hearing look more like a grand jury.  First, the presiding officer is a judge advocate but not a magistrate.  This isn’t a formal judicial event.  Second, the other main purpose of the Article 32 is for the hearing officer to make a non-binding recommendation on case disposition to the convening authority.  This feature seems more like an indictment.  Third, like grand juries but unlike preliminary hearings, there isn’t a time crunch.  In the military, few people are arrested (and “arrest” is a peculiar term of art).  Those who are confined get a separate review.  The only time crunch is the 120-day speedy trial clock that starts upon preferral of the charges. 

If we match the Article 32 to a grand jury, then the media won’t have a right to attend.  Generally speaking, journalists don’t have a First Amendment right to attend grand juries or to the get information presented to them.  To get information from grand juries, journalists have to rely upon FOIA requests or state sunshine laws. 

If we match the Article 32 to a preliminary hearing, the media might have a right to attend.  In the Sixth Amendment public trial context, courts have broadened the definition of “trial” to include judicially-supervised events like voir dire and suppression hearings.  While federal preliminary hearings and many state preliminary hearings are open by rule (Marcus et al., The Rights of the Accused Under the Sixth Amendment 36-38 (2012)), the Supreme Court has not formally expanded the accused’s Sixth Amendment right to this early in the process, and even if the Court did, we don’t know if the media’s First Amendment rights would come along for the ride.  Because most preliminary hearings are open, this issue may never make its way to the Supreme Court – except by way of an Article 32 appeal.

In the military, the President was wise enough to require the hearing to be open, but if he hadn’t, I don’t think the Constitution requires that it be open to the media.  The key to me is that the Article 32 is not supervised by a magistrate or judge and that is where the line for “trial” seems to have been drawn.

Subject matter jurisdiction?

Assuming both Bergdahl and the media have an actionable right, the next issue is whether the military appellate courts have subject matter jurisdiction.  In a particular case, a party seeking relief under the All Writs Act must show two things: first, that the appellate court has subject matter jurisdiction; and second, that the writ is necessary and appropriate.  The first prong relates to whether a court can issue a writ, the second relates to whether a court should issue a writ.  (It is well-settled that military appellate courts have power under the All Writs Act to issue writs.)

Toward the first prong, military appellate courts are Article I courts with very limited subject matter jurisdiction.  They are limited to acting with respect to the findings and sentence of a court-martial. 

Dicta exists that makes it seem pretty likely that if Bergdahl is asserting his right under RCM 405 (and possibly the Sixth Amendment), military appellate courts have potential jurisdiction over spectator access issues raised at Article 32s.  (CCR, 72 M.J. at 129-30.)  The law seems pretty clear that Article 32s can potentially impact the findings and sentence of the court-martial.  For instance, the accused might develop evidence at the Article 32 that could potentially impact the findings (even though discovery is no longer a feature of Article 32s).  In Bergdahl’s case, the hearing officer already had the report and presumably used it when making his recommendation so that argument is not very strong.  The stronger argument in his case is that the sunshine cast on this report – the very reason why we have the rule – could influence the Article 32 hearing officer’s recommendation: “the forum of public opinion is an effective restraint on possible abuse of judicial power.”  (Marcus at 31, citing In re Oliver, 333 U.S. 257, 270 (1948)).

If the accused litigates the issue after the case has been arraigned and the military judge rules against him, it is settled law that the accused can seek a writ.  (Davis, 64 M.J. 445, 449 (C.A.A.F. 2007)).  Whether the accused can seek a writ before arraignment is still an open issue. 

When the accused raises the issue before trial, there is some chance that he won’t ever get to trial.  But the spectator access issue could still potentially influence the findings and sentence of the potential trial if the case does get arraigned.  The subject matter is the same.  The only difference is timing.  While the timing shouldn’t impact the first prong (can the court hear the claim), it could affect the second prong (should the court hear the claim).  It might not be efficient to hear the claim early.

While I think military appellate courts do have subject matter jurisdiction for Bergdahl’s claim, I don’t think this is clear for the media’s claim.  Assuming the media has this right at an Article 32, I don’t see how the media’s First Amendment right – again, separate from Bergdahl’s regulatory and Sixth Amendment rights – falls within the military appellate courts’ very narrow Article I subject matter jurisdiction. 

The media’s right comes from the First Amendment’s Freedom of the Press Clause.  Their injury is the limit on that freedom.  Military appellate courts simply don’t have jurisdiction for civilian causes of action arising under the Constitution or the laws of the United States.  Rather, Article III courts do. 

The current state of the military case law reflects that divide.  In a recent case, the Court of Appeals for the Armed Forces (CAAF) found that it did not have jurisdiction to hear the media’s First Amendment claims when the accused did not also join the action.  (CCR, 72 M.J. 126).  (Steve Vladeck comes out the other way, arguing that the military courts have jurisdiction to hear the media’s claims, here and here.  Steve heavily criticizes the CCR opinion.)

Necessary and appropriate?

Turning now to the last issue – the second prong of the All Writs Act – things get tougher for both Bergdahl and the media.  In Cheney, 542 U.S. 367 (2004), the Supreme Court clarified the second prong a little, stating that “necessary” means “no other adequate means” and “appropriate” means “appropriate under the circumstances.”  The Court also provided the burden of persuasion: a party needs to show that the need for the writ is “clear and indisputable” (citing Bankers Life & Casualty Co., 346 U.S. 379, 384 (1953)). 

In Bergdahl, the government has argued that a writ is not necessary because Bergdahl can make a FOIA request, but as Bergdahl’s appellate briefs make clear, the government is confused on this issue.  Bergdahl is not requesting the information.  He already has it.  Rather, he is trying to vindicate his rights under R.C.M. 405 (and possibly the Sixth Amendment).

I think a better government argument is that a writ is not necessary because the strict scrutiny test was satisfied.  The convening authority has not explained his decision in a way that would allow us to evaluate this claim, though.  (See Steve’s post for a discussion of this point). 

Even if necessary, issuing a writ might not be appropriate under the circumstances.  The word “appropriate” is a wishy-washy normative word that does not provide much of a limitation on judicial discretion.  While I think issuing a writ would be appropriate (justice delayed is justice denied), many judges could reasonably argue that a writ is not appropriate under the circumstances because this case has not yet been referred to court-martial.  Maybe it would be more efficient to wait until we know that the case is going to trial.  When you view this through the burden of persuasion (clear and indisputable), the petitioner’s job gets even harder.

Bergdahl can still litigate this issue at the court-martial.  Bergdahl has argued that this isn’t good enough and that the writ must be contemporaneous to the harm.  But one of the potential remedies at trial is for the military judge to pause the proceedings and order the government to hold a new, fully-open Article 32 hearing.  She can order a redo.  And if Bergdahl loses on this issue before the military judge, then he can file for a writ.

Toward Bergdahl’s claim, I think the appellate courts could go either way on that issue.  I think as it relates to the media, though, the issue is clearer.  Again, assuming the military courts have subject matter jurisdiction, the media does have other adequate means to get the information.  They can file a FOIA request and if denied, litigate that in an Art. III court.  (Steve argues that this sets up collateral attacks on the military courts that could lead to conflict between the two systems and places the military courts in a subservient role.)

What have the courts done in Bergdahl?

So what have the military appellate courts actually done?  On October 8, 2015, the Army Court of Criminal Appeals stated that it did not have jurisdiction under the All Writs Act to act to hear Bergdahl’s claim.  Among other reasons that don’t make much sense, the court said it did not have jurisdiction because of the case had not yet been arraigned.  As I argue above, I don’t think that is right.

The court also stated that even if it had jurisdiction, it would not grant relief because the Bergdahl can ask the military judge for relief, if he goes to trial.  That seems defensible.  (The court includes other reasons for why it would not grant a writ that don’t make much sense).  On October 14, the court rejected the media’s claim for largely the same reasons.

Bergdahl and the media then appealed those decisions to CAAF.  Last week, CAAF denied the writ petition with no explanation.  Reading the tea leaves, I think CAAF is probably waiting for this to be litigated at the court-martial (if there is one) and may then be interested in the case if the military judge rules against Bergdahl.  The last time they moved quickly on an issue like this, they produced the ABC opinion and have since had to back away from that hasty decision.  They may want to take more time this go-around and get it right.

Over the next few months, if the case goes to trial, this will likely be an issue that is contested right away.  Depending on the military judge’s decisions, it will likely go up to the military appellate courts.

Why is the government taking this position?

All of this begs the question: Government, why not just release the report? 

Why waste all of these taxpayer resources hiding unclassified information?  If there is personally identifiable information or sensitive tactical information in the report, why not redact those portions and release the rest?

As Steve points out, the government does not have a good track record with transparency in high-profile courts-martial.  And these cases certainly require transparency, particularly because the military justice system is unfamiliar to most of the American public.  Congress has shown in recent years that it isn’t afraid of making changes to the system when the public loses trust in it.  One good way to lose the public’s trust is to hide things.  If you are the government and you want to preserve the current military justice system, this doesn’t seem like good strategy.

The government’s position does not make much tactical sense, either.  If the military judge reopens the Article 32, that will slow things down and waste more resources.  And if the military judge rules against Bergdahl, I am pretty certain that he will seek a writ, and that will slow things down and waste more resources. 

Bad news doesn’t get better with age.