The US Court of Appeals for the Armed Forces denied a motion on Monday that had been filed by attorneys for Army Sergeant Bowe Bergdahl seeking to expedite a hearing to publicly release documents in their client's case. The lawyers argued that a series of disparaging comments about Bergdahl made by Republican presidential frontrunner Donald Trump had "materially threatened" the prospect of a fair trial and amounted to "character assassination."
Bergdahl's representation wanted to speed up a side hearing over the documents, which has not yet been scheduled, to help level the playing field. The motion sought to schedule the hearing in December.
Trump, a billionaire businessman turned reality TV star who is notorious for casually making controversial statements, has continually called Bergdahl a "traitor" since the Army charged the 29-year-old soldier in March with deserting his military outpost in Afghanistan six years ago. He was captured by the Taliban after leaving the base, and was eventually freed in mid-2014 as part of a prisoner swap for five Taliban detainees who had been held at the US prison at Guantanamo Bay, Cuba.
The motion filed by Bergdahl's lawyers, viewable below, seized on an earlier petition filed by a number of media outlets, including the Associated Press, Hearst Newspapers, and the New York Times, which requested public access to an unclassified summary report penned by Major General Kenneth Dahl, who led the Army's investigation into events surrounding Bergdahl's disappearance from his base in Paktika province in 2009. The report also included a transcript of an interview between Dahl and the soldier, which is also being sought for the public record.
But on Monday morning, the US Court of Appeals for the Armed Forces dismissed the motion to schedule the hearing for December.
"They didn't say why," Eugene Fidell, one of Bergdahl's attorneys, told VICE News. "All they said was that it was denied as moot."
The media petition for the release of the documents is still in play.
"It's preposterous that [the report] is not on the public record," Fidell added. "It was introduced in evidence and it's unclassified."
In the failed motion, Bergdahl's lawyers presented at least 18 instances where Trump had made derogatory comments about Bergdahl, including that the sergeant was a "dirty rotten traitor" who "went to the other side." Trump's assertions "materially threatens SGT Bergdahl's right to fair consideration by the convening authority as well as in a court-martial, if any charges are in the end referred," the motion read.
Bergdahl's defense team previously made a complaint in August against Trump, who is currently leading the field of potential GOP nominees by roughly 10 points, over the candidate's "defamatory" language and "reckless disregard for the truth."
"This is the lowest kind of demagoguery. Mr. Trump's comments are contemptible and un-American. They are a call for mob justice," Fidell said in a statement at the time. "No American should have to put up with this kind of unprincipled behavior, especially from a person seeking public office. Mr. Trump must stop vilifying this young man, who suffered five years of brutal captivity at the hands of the Taliban and deserves to be judged on the basis of evidence rather than slander from someone who has never worn our country's uniform."
"All SGT Bergdahl hopes for is something more closely approximating a level playing field in the court of public opinion," the defense lawyers later wrote in their motion to expedite the side hearing. "Simple fairness demands that SGT Bergdahl at least be able to defend himself by permitting public access in real time to documents that put the lie to the kind of character assassination to which he is being subjected."
The lawyers acknowledged in the motion that while Bergdahl is not in in a position to sue Trump, neither is he able to "make public statements, demand the microphone or hog the camera as Mr. Trump continues to do."
Bergdahl was just 23 when he allegedly walked away from his military outpost in 2009 and was captured by militants who held him hostage for five years and tortured him repeatedly. He was freed as part of a prisoner swap in May 2014 in exchange for five Taliban commanders who were being held at Guantanamo. The secret exchange, conducted by the Obama administration without Congress's approval, sparked political outrage, much of which focused on the murky circumstances surrounding Bergdahl's disappearance and whether the soldier was responsible for endangering the lives of troops that went looking for him.
A long-awaited Article 32 hearing — which is frequently compared to a civilian grand jury hearing — began in September. The hearing will help determine whether there is enough evidence to court martial the sergeant for desertion and endangerment, a charge that could see him imprisoned for life.
Major General Dahl testified at a preliminary hearing that he had found no evidence that any soldiers had been killed while searching for Bergdahl over the course of his 59-day investigation, despite claims that six had specifically died while doing so — a claim perpetuated by Trump both in the media and on the stump. Dahl also stated that he did not believe the sergeant had intended to permanently flee or join the Taliban, and said that a jail sentence for Bergdahl would be "inappropriate."
Against Dahl's recommendations, the Army charged Bergdahl with "desertion with intent to shirk important or hazardous duty" and "misbehavior before the enemy by endangering the safety of a command, unit, or place" on March 24.
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