UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before HAIGHT, PENLAND, and WOLFE 

Appellate Military Judges

HEARST NEWSPAPERS, LLC et al., Petitioner 

& 

Sergeant ROBERT B. BERGDAHL, Real Party in Interest 

v. 

General ROBERT B. ABRAMS, Commander, Respondent 

& 

Lieutenant Colonel PETER Q. BURKE, Commander, Respondent 

& 

Lieutenant Colonel MARK A. VISGER, Preliminary Hearing Officer, 

Respondent 

& 

UNITED STATES, Respondent 

ARMY MISC 20150652 

For Petitioner: Jennifer D. Bishop; Diego Ibarguen (on brief). 

For Real Party in Interest: Lieutenant Colonel Jonathan F. Potter, JA; Captain 

Alfredo N. Foster, JA; Lieutenant Colonel Franklin D. Rosenblatt; Eugene R. Fidell 

(on brief). 

For Respondent: Pursuant to A.C.C.A. Rule 20(e), no response filed. 

14 October 2015 

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SUMMARY DISPOSITION AND ACTION 

ON PETITION FOR EXTRAORDINARY RELIEF IN THE 

NATURE OF A WRIT OF MANDAMUS 

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Per Curiam: 

Petitioner is charged with desertion and misbehavior 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 case on 17-18 September 2015. 

 On 2 October 2015, Hearst Newspapers, LLC et al. petitioned this court for 

extraordinary relief in the nature of a writ of mandamus. On 5 October 2015, 

Sergeant Robert B. Bergdahl filed a motion for leave to intervene as a real-party-in 

interest, which was granted by this court on 13 October 2015. 
BERGDAHL – ARMY MISC 20150652 

2 

Petitioner presents the following two issues: 

A. WHERE UNCLASSIFIED DOCUMENTS ARE 

RECEIVED INTO EVIDENCE DURING A PUBLIC 

ARTICLE 32 [UCMJ] HEARING, MAY THE 

CONVENING AUTHORITY OR OTHER PRESIDING 

OFFICER DENY PUBLIC ACCESS TO THOSE 

DOCUMENTS WITHOUT SPECIFIC, ON-THE-RECORD, 

FINDINGS THAT SUCH DENIAL—EFFECTIVELY 

SEALING THE DOCUMENTS—IS NECESSARY TO 

FURTHER A COMPELLING GOVERNMENT INTEREST 

THAT OVERRIDES THE FIRST AMENDMENT AND IS 

NARROWLY TAILORED TO FURTHER THAT 

INTEREST. 

B. IS THE GENERAL COURT-MARTIAL CONVENING 

AUTHORITY, SPECIAL COURT-MARTIAL 

CONVENING AUTHORITY, AND/OR ARTICLE 32 

[UCMJ] PRELIMINARY HEARING OFFICER 

REQUIRED TO MAKE TRANSCRIPTS OF A PUBLIC 

ARTICLE 32 HEARING AVAILABLE TO THE PUBLIC 

IMMEDIATELY FOLLOWING THE HEARING? 

Petitioner asks this court to answer both questions in the affirmative and to 

issue a writ of mandamus directing the public release of documents. 

The jurisdiction of this court to issue process under the All Writs Act is 

limited to issues having “the potential to directly affect the findings and sentence.” 

LRM v. Kastenberg, 72 M.J. 364, 368 (2013); 28 U.S.C. § 1651. This court does not 

have jurisdiction to oversee the administration of military justice generally. Clinton 

v. Goldsmith, 526 U.S. 529, 534 (1999). Petitioner has not demonstrated that the 

release of documents to the public, prior to any decision on whether this case should 

be referred to trial, has the potential to directly affect the findings and sentence. As 

this court lacks the jurisdiction to consider the matter, the petition is DISMISSED. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: