## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges

Sergeant ROBERT B. BERGDAHL, Petitioner

v. Lieutenant Colonel P ETER Q. BURKE, Comm ander, Respondent
&
The UNITED STATES

, Respondent

ARMY MISC 20150624

For Petitioner: Lieutenant Colonel Jonathan F. Potter, JA; Captain Alfredo N. Foster, JA; Lieutenant Colone l Franklin D. Rose nblatt; Eugene R. Fidell (on brief);
Lieutenant Colonel Jonath an F. Potter, JA; Captai n Alfredo N. Foster, JA;
Lieutenant Colonel Franklin D. Rosenbla tt; Eugene R. Fidell (on reply brief).

Amicus Curiae: For the Center for Constitutional Rights: Baher Azmy; J. Wells Dixon; Shayana D. Kadidal (on brief).

For Respondent: Co lonel Mark H. Sydenham (JA): Major A.G. Courie III, JA; Captain Jihan Walker, JA (on brief).

8 October 2015

----------------------------------------------------------------------- MEMORANDUM OPINION AND ACTION
ON PETITION FOR EXTRAORDINARY RELIEF IN THE
NATURE OF A WRIT OF MANDAMUS

-----------------------------------------------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

Petitioner is ch arged with desertion and misb ehavior before the enemy, in
violation of Articles 85 and 99 , Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 899 [hereinafter UCMJ]. Pursuant to Article 32, UCMJ, a preliminary hearing was conducted in petitioner’s ca se on 17-18 September 2015.BERGDAHL – ARMY MISC 20150624

2 On 17 September 2015, Se rgeant Robert Bergdahl petitioned this court for extraordinary relief in the nature of a writ of manda mus. Specifi cally, petitioner
asks this court to direct the respondent, the special court- martial convening authority, to: 1) make publi c forthwith the unclassified exhibits that have been
received in evidence in the accused’s preliminary hearing; and 2) modify the protective order to permit the accused to make those exhibi ts public. Fo r the reasons below, the petition is dismissed.

As an initial ma tter, it is important to note what this petition does not
concern. This court has not been aske d to review the appropriateness of the protective order issued by the special court-ma rtial convening auth ority. Neither petitioner nor the Unit ed States has submitted to the c ourt (under seal or otherwise) the documents that are subject to the protective order. Th e record in front of this court consists solely of th e filings by the petitioner a nd the government, attached exhibits, and a brief submitted by the Center for Constitutional Rights as amicus

curiae . Even if this court were to try to resolve the issu e of whether the protective order is overly broad or infringes on the pe titioner’s right to a public hearing, as

amicus curiae suggests, we are unable to do so. Instead, the question presented to
this court is the narrow one submitted by petitioner: “Once an unclassified document has been accepted in evidence in a preliminary hear ing open to the public, must the convening authority release it a nd permit the accused to do so?”

Before we can address petitioner’s ques tion, however, we mu st first determine whether we have jurisdiction to issue the writ requested. Steel Co. v. Citizens for a

Better Environment , 523 U.S. 83, 94-95 (1998 ) (Jurisdiction must be established as a threshold matter without exception).

The Army Court of Criminal Appeals is a court of limit ed jurisdiction, established by The Judge Advocate Genera l. UCMJ art. 66(a) (“Each Judge
Advocate General shall establis h a Court of Criminal Appeal s. . . .”). The mandate
to establish this court was ma de pursuant to the authorit y of Congress to pass laws regulating the Armed Forces. See U.S. Const. art. I § 8, cl. 14. While this court has jurisdiction to issue writs under the Al l Writs Act, 28 U.S.C. § 1651, we must exercise this authority “in strict compliance with [the ] authorizing statutes.” Ctr. For Constitutional Rights (CCR) v. United States , 72 M.J. 126, 128 (C.A.A.F. 2013). Our jurisdiction to issue the requested writ is limited to our subject matter jurisdiction over the case or co ntroversy. See United States v. Denedo , 556 U.S. 904, 911 (2009); UCMJ art. 66 . “To establish subject ma tter jurisdiction, the harm alleged must have had ‘the po tential to directly affect the findings and sentence.’” LRM v. Kastenberg , 72 M.J. 364, 36 8 (2013) (quoting CCR , 72 M.J. at 129).

In determining whether we ha ve jurisdiction, we are cognizant of the role this court plays in the military justice system. This court does not ha ve jurisdiction to oversee military ju stice generally. Clinton v. Goldsmith , 526 U.S. 529, 534 (1999).BERGDAHL – ARMY MISC 20150624

3 The Judge Advocate General, staff judge advoca tes, and conveni ng authorities are among those with significant duties in overseeing mi litary justice. See e.g. UCMJ arts. 26(a), 27(b)(2) , 69 and 73 (responsib ilities of the Judge Advocate General in designating military judges, certifying the qualifications of counsel, conducting appellate review, and acting on petitions fo r new trials); UCMJ arts. 32, 34 60, 71, and 138 (responsibilities of convening authorities in appointing preliminary hearings, referring ca ses to trial, approv ing and execut ing sentences, and hearing complaints against comm anding officers). In general, while the jurisdiction of this court over the findings and sentence of a case referred to it is broad, see UCMJ art. 66(c); United States v. Claxton , 32 M.J. 159, 162 (C.M .A. 1991) (“a clearer carte blanche to do justice would be difficult to expr ess”), the authority of this court to review pre-referral matte rs is limited and lacks a firm statutory basis.

Although not phrased as such , the relief petitioner seek s is for this court to countermand an order given by a military commande r, in a circumstance where there is not yet—and may neve r be—a court-martial. This would be a broad view of this court’s jurisdiction.

Nonetheless, although it is a broad view, it is not unheard of. In ABC, Inc. v.
Powell , 47 M.J. 363 (C.A.A .F. 1997), our superi or court granted a writ in a case that
is somewhat similar to the issue presente d here. In Powell , the special court-martial convening authority directed that the entire Article 32, UCMJ, he aring be closed. The Court of Appeals for the Armed Forces (C.A.A.F.) gran ted the writ, ordered that the hearing be open to the public, and directed that the hearing may be ordered closed only as necessary on a case-by-case basis. Id. at 365-366. However, since that time, the C.A.A.F has questioned whether Powell continues to be good law. In denying a writ seeking media access to court-martial fili ngs, (as opposed to filings at a pretrial hearing such as the pr esent circumstances), the C.A.A.F. in CCR rejected Powell as controlling preceden t, noting that “(1) Powell was decided before
Goldsmith clarified our understandi ng of the limits of our authority under the All Writs Act, and (2) we assumed jurisdiction in that case wit hout consid ering the question.” CCR , 72 M.J. at 129.

In Goldsmith , the Supreme Court clearly stat ed that a Court of Criminal Appeals’ jurisdiction extend s to reviewing the findings and sentence of courtsmartial. 526 U.S. at 535. Under the All Writs Act, th is court can is sue process “in aid” of that jurisdic tion. Thus, for example, the C.A.A.F. had ju risdiction to order
the removal of a “biase d” military judge as it “had the potential to directly affect the findings and sentence” and was therefore in aid of the court’s jurisdiction. CCR , 72 M.J. at 129 (citing Hasan v. Gross , 71 M.J. 416 (C.A .A.F. 2012)).

Viewing Powell in light of Goldsmith , we reject the invita tion to extend the jurisdiction of this court under the All Writ s Act to the pre-referr al matter ra ised in this writ. Furthermore, the matter petitione r desires us to address is not a judicialBERGDAHL – ARMY MISC 20150624

4 order with focused applicability to only th e Article 32 preliminary hearing. Rather, the order in question is a military order provided by a comma nder with application far beyond the Article 32, UCMJ . Specifically, th e protection provi ded the contents of the Army Regulation 15-6 administrative investigation, for example, should and must be sought throu gh administrative cha nnels provided outsid e the court-martial process, such as the Freedom of Informat ion Act (FOIA) 5 U.S.C. § 552, Army Reg. 15-6, Procedures for Investigat ing Officers and Boards of Officers, para. 3-18(b) (2 Oct. 2006), and Article 138, UCMJ (Complaints of wrongs).

In Goldsmith , the Supreme Court distinguishe d between “executive actions” (where writ jurisdiction did not exist) and actions effecting the “finding” or “sentence” (where writ jurisdiction does exist). Goldsmith , 526 U.S. at 535. Although a closer call than the facts presented in Goldsmith , we find a protective order issued by a military commander, in tended to cover the public release of government information both be fore and after a preliminary hearing, to be more akin
to an executive action. An Article 32 hearing is “not pa rt of the court-martial.”
United States v. Davis , 64 M.J. 445, 449 (C.A.A.F. 2007). 1 An Article 32 hearing, being a hearing conducted before a decision is made to send a case to trial, is unlikely to have “t he potential to directly affect the findings and sentence” as required for writ jurisdiction. Kastenberg , 72 M.J. at 368 (empha sis added).

This is not to say that as an executive action, the protective order is not subject to judicial review. Assuming a proper request, when an agency fails to comply with FOIA, a civil action may be brought against the ag ency in a United
States district court. 5 U.S.C. § 552(a)(4)(B).

Setting aside whether this filing is a FO IA request clothed as a writ petition and whether there are other pa ths more appropriate to addr ess petitioners claim, the structure of the military justic e system assigns to others the initial responsibility of addressing the issue presente d by the petitioner. While th is includes the military commander, most critical ly it includes the military ju dge. Were we to assume that the charges will be referred to a general court-martial in order to ar guably find jurisdiction over this writ, we must also assume that a military judge will be detailed to the case. UCMJ art. 26(a) (“A military judge shall be detail ed to each general court-martial.”). Not only will the military judge be the structurally appropriate

1 The charges may be dismisse d prior to referral or referred to a su mmary or special court-martial, in which case, the requirem ent for a preliminary hearing disappears.

See Rule for Courts-Martial [hereinafter R. C.M.] 405(a) (“Failur e to comply with
this rule shall have no effect on the disp osition of the charge(s) if the charge(s) is not referred to a general court-martial.”).BERGDAHL – ARMY MISC 20150624

5 person to consider th e questions presen ted by this writ, the mili tary judge, having a more developed record, will al so be far better positioned to consider the matter.

Furthermore, in the course of appellate review, in order to rece ive relief from an error in a preliminary hearing an accus ed would be required to demonstrate a material prejudice to a substan tial right. UC MJ art. 59(a); Davis , 64 M.J. at 448. Put differently, if an accused must be prej udiced to receive relief on appeal, at least a similar showing of potential prejudice to the findings or sentence is a threshold requirement for this court to issue the writ. 2 To the extent that petitioner has identified possible prejudice, 3 the petitioner has not dem onstrated that the prejudice is incapable of remedy at tr ial through, for example, the process of liberal voir dire
and other available court remedies. See R.C.M. 905(b)(1) and 906.

Even assuming we were to find jurisdiction in this case, we wo uld not grant petitioner the relie f he seeks. To prev ail on his writ of ma ndamus, petitioner must show that: (1) there is no ot her adequate means to attain relief; (2) the right to
issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380–81 (2 004). We conclude that peti tioner has fallen short on all three prongs.

As to the first prong, we again note that the accused retains the full ability to
seek relief at trial from any error arising from th e Article 32 hearing. If a preliminary hearing did not substantially comply with R.C.M. 405 and Article 32, the military judge may reopen the Article 32 hearing or provid e other appropriate relief. R.C.M. 906(b)(3). In this way, this case differs signific antly from the issues presented in Powell and CCR . In Powell , the news media petiti oners were barred access from the hearing itself, and a remedy given after the hearing had concluded
would have been too late. 47 M.J. at 365. In CCR , the writ addresse d access to trial documents, and not docume nts submitted during th e Article 32 hearing.

With regards to the second prong, petitione r’s right to the is suance of the writ is not clear or indisputab le. Petitioner requests tw o forms of relief: (1) the
immediate release of all exhi bits; and (2) permission to release the documents to the

2 Notably, however, an accused who allege s a defect in the Ar ticle 32 hearing in a motion to the military judge is not required to demons trate prejudice. See Davis , 64 M.J. at 448. Again, the milit ary judge, vis-à-vis this co urt, is likely to be in a superior position to consider this matter.

3 Petitioner alleges negative media coverage “seriously threatens . . . his right to a fair trial if any charge is referred for trial.”BERGDAHL – ARMY MISC 20150624

6 public himself. 4 In support of this contention petitioner cites to the public’s broad right to access documents admitted at trial. We agree with th e brief submitted by

amicus curiae that public access to tr ial documents serves importa nt public interests. “[P]ublic scrutiny” does inde ed serve as a restraint on government, an d openness has a “positive effect on the truth-determining function of the procee dings.” Article 32 hearings, however, are not an apples-to-appl es comparison to trials on the merits. As an Article 32 prelimin ary hearing is conducted before there has been a decision on whether to send the case to trial, comparis ons to civilian practice are difficult. As an Article 32 hearing is created by statute, an ac cused’s rights at such a proceeding generally have a statutory basis. Additionally, Article 32 preliminary hearings are not govern ed by rules of evidence . Evidence that w ould be excluded or suppressed at trial ma y be admitted at an Article 32 hearing. R.C.M. 405(h). An Article 32 preliminary hearing officer can not ordinarily screen out documents of dubious reliability, that are of questionable authenticity, or whose probative value is substantially outweighed by dangers of unfair prejud ice. While an Article 32 hearing is a public proceeding, it is not cl ear that the pub lic’s interest in obtaining documents at a preliminary he aring is viewed through the same lens as the public’s right to admitted documents at trial on the merits. Thus , while we find the arguments of amicus curiae regarding openness to poss ess merit, petitioner has not
met his burden to establish a “clear and indisputable” righ t to the requested relief.

As to the last prong, we do not find the relief petitioner seeks would be appropriate. A judge-made rule that such matter is automatically public (as petitioner requests ) or is presumpt ively public (as amicus curiae argues) would have secondary effects.

With no rules of ev idence, and without a judicial officer, such a rule would allow a party to make public the entire ca se file so long as the information was relevant to the purposes of the preliminary hearing. See R.C.M. 405(a) (purpose of the hearing includes information relevant to disposition). This would allow a party to introduce into the public sphere inform ation that is inadmi ssible at trial and whose evidentiary valu e may be minimal. See Army Reg. 27-26, Rules of
Professional Cond uct for Lawyers

, Rule. 3.6 (Tribunal Publicit y) (1 May 1992). As
an accused does not have fu ll access to discovery until after referral, such a rule
would result in an un even power dynamic. See R.C.M. 701(a).

4 As petitioner seeks the right to release the documents himself without the redaction
of sensitive matter (such as social security numbe rs, graphic phot os, or medical records), the relief pe titioner seeks goes far beyond the case-by-case evaluation required by Powell

.BERGDAHL – ARMY MISC 20150624

7 Lastly, a rule that pr ovided for the au tomatic publication of all matter
submitted to an Article 32 hearing appears to be cont rary to the Military Rules of
Evidence and Rules for Cour ts-Martial. Milit ary Rule of Evid ence 506(e)(1)(D) specifically allows the government to provide sensitive information to the accused before referral subject to a protective or der. Additionally, the authority of the preliminary hearing officer unde r R.C.M. 405(i)(9) to seal exhibits is not limited to
classified exhibits. Both rules would be unde rmined by the outcom e that petitioner
suggests.

CONCLUSION

Therefore, for the reasons stated above, the petition for extrao rdinary relief in
the nature of a writ of mandamus is DISMISSED.

Senior Judge HAIGHT and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: