Bergdahl defense can access classified information, court rules

[May 02, 2016]  (Reuters) - Lawyers for U.S. Army Sergeant Bowe Bergdahl, who faces a potential life sentence for desertion while serving in Afghanistan, should have access to classified material to prepare his defense, a military appeals court has ruled.

Legal proceedings against Bergdahl, which had been halted pending a resolution of the classified material issue, can now resume, according to a ruling on Thursday by the United States Army Court of Criminal Appeals that was made public late on Saturday by Bergdahl's attorney, Eugene Fidell.

Bergdahl, now 30, walked away from his post in Afghanistan in 2009 and was captured by the Taliban, who held him prisoner for five years and tortured him. He later told military investigators that he left his post because he had a plan to tell military brass about incompetence among his commanders.

He was freed in a prisoner swap in May 2014 involving the release of five Taliban leaders who were being held by the United States. The exchange was criticized by Republicans in Congress.

Bergdahl returned to active duty, but after an investigation he was prosecuted by the U.S. military who said his disappearance from his post resulted in a 45-day search that put soldiers' lives at risk.

The formal charges in his court-martial are desertion and misbehavior before the enemy. He has not entered a plea to the charges or decided whether he will be tried by a military judge or a jury of soldiers.

His defense asked for access to 300,000 pages of classified documents and on Feb. 2 a military judge ruled that the defense should have access to all classified information that the government may offer into evidence at trial.

The U.S. government appealed the ruling saying the judge had abused his discretion. The pre-trial proceedings were put on hold while the issue was being resolved.

The Army Court of Criminal Appeals said in its ruling that the military judge had not granted the defense unfettered access to classified information, but only to material in the context of trial discovery.

"The stay on the trial proceedings imposed by this court is lifted," the judges of the Army Court of Criminal Appeals ruled.

"It’s a technical matter but an important one having to do with cases involving how classified information is litigated," Fidell said on Sunday.

The defense lawyer Fidell told Reuters that a pre-trial conference would resume on May 17 although the Army could still appeal Thursday's ruling.

Bergdahl is free while he awaits trial and is stationed at Fort Sam Houston in San Antonio, Texas, where he works at a desk job and receives treatment at a hospital.

(Reporting by Fiona Ortiz in Chicago; additional reportinig by Valerie Volcovici in Washington, D.C.; Editing by Frank McGurty, Alan Crosby and Andrew Hay)

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