DEPARTMENT OF THE ARMY
UNITED STATES ARMY TRIAL DEFENSE SERVICE
9275 GUNSTON ROAD
FORT BELVOIR, VIRGINIA 22060

09 October 2015

MEMORANDUM FOR Lieutenant Colonel Mark A. Visger, Preliminary Hearing Officer, Staff
Judge Advocate, Headquarters, Division West, First Army, 761st Tank Battalion Avenue, Fort
Hood, Texas 76544
SUBJECT: Defense Comments on Article 32 Report, United States v. Bergdahl

1. In accordance with R.C.M. 405(i)(8), (j)(5), and (k), the defense respectfully submits the
following comments on and objections to your 05 October 2015 Article 32, UCMJ preliminary
hearing report. We are grateful for the balanced, judicious, and humane approach you have taken
to this complex case, and for the evenhanded way you conducted the public hearing. Your report
should be made public so the American people can be fully informed of your findings,
conclusions and recommendations now, and not some unknowable date long into the future. This
is only right given that the hearing itself was required to be - and was - conducted in public
under the Manual for Courts-Martial.
2. R.C.M. 306(b) requires that offenses be disposed of at "the lowest appropriate level of
disposition." Given your conclusion - with which we agree - about whether confinement or a
punitive discharge are warranted, and the factors you cited in support of that conclusion,
nonjudicial punishment under Article 15, UCMJ, is the appropriate disposition.
3. Early in the case, the defense requested the preservation and production of evidence from other
branches of the armed forces and other government agencies. The prosecutors reported that they
received thousands of pages of evidence in response. R.C.M. 405(f)(l)(C) requires prosecutors to
disclose to defense any evidence in their possession that negates or reduces the degree of guilt for
an offense charged. The prosecutors wrote on 03 September 2015 that much of the evidence they
had received still had not been reviewed, but concluded that "[t]here are no documents in the
possession of the trial counsel which could reduce or negate the degree of guilt of the Accused."
The prosecutors opposed a defense request for delay based in part on our need to access this
evidence before the preliminary hearing. They also opposed a request that we be allowed to view
this evidence. We object to these actions, to include the denial of our request to delay the
preliminary hearing for these purposes.
4. We object to the failure to conduct a jurisdictional inquiry as required by Article 32(a)(2)(B),
UCMJ. Four jurisdictional issues should have been addressed:
(a) The report should have considered whether LTC Peter Q. Burke was disqualified from
serving as the special court-martial convening authority because he is a Type 1 accuser.

 SUBJECT: Defense Comments on Article 32 Report, U.S. v. Bergdahl

(b) The report should have considered the unusual and unexplained steps by which the
question of possible disciplinary action against SGT Bergdahl was shifted, in turn, from U.S.
Army Alaska to U.S. Army North to the Department of the Army Staff to FORSCOM.
(c) The report should have considered the Secretary of the Army's explicit non-delegation
provision in assigning the case to FORSCOM for disposition, and the FORSCOM Commander's
subsequent partial delegation of powers to LTC Burke.
(d) The report should have considered whether the Army has Article 2(a), UCMJ
jurisdiction over SGT Bergdahl because his enlistment expired while he was held captive.
5. We object to the form of the charges as overbroad. In preparation for the preliminary hearing,
the prosecutors proffered more specific details to narrow the charges, which in turn narrowed the
scope of requests for evidence, witnesses, and areas of inquiry. The charges were never amended
to reflect the more specific offenses considered at the preliminary hearing.
6. Four potential defense witnesses told us that they could fully discuss pertinent facts about the
search and recovery aspect of Charge II at the Top Secret level. We object to the Office of the
Judge Advocate General's short-circuiting Mr. Fidell's TS(SCI) clearance request so that it
would never even reach the cognizant clearance-granting officials at Army G2. We further object
to the prosecutors' refusal to disclose an unclassified document related to this prejudicial matter.
7. We object to the prosecution imposing conditions on our ability to speak with four witnesses
and their demand that any topics we wished to discuss with those witnesses be disclosed to the
prosecution first. The prosecutors sought and obtained an order from the CENTCOM Chief of
Staff limiting defense access to a material witness. The prosecution based these conditions on a
misreading of M.R.E. 505(i), which concerns defense disclosures of (not access to) classified
evidence. This error materially and prejudicially affected our ability to interview witnesses and
prepare for the preliminary hearing.
8. We object to the prosecution's insistence that the defense present any requests for classified
evidence to the convening authority. They relied on a misinterpretation of M.R.E. 505(e)(l),
which only requires convening authority action for classified evidence over which a claim of
privilege has been asserted. In this case, no such claim was ever asserted. The prosecution's
misinterpretation undermined your ability to order the production of defense-requested classified
evidence. Relatedly, the prosecution earlier this week caused the convening authority to send us a
letter claiming that we must share with the prosecution any plans to consult classified
information prior to any referral of charges. This is an improper effort either to invade our
confidential preparations or chill or impede our representation, or both. We have stated our
position to LTC Burke in separate correspondence.
9. We object to the prosecution's refusal to share the contact information of witnesses that was
known to them (including the listed government witnesses and a potentially material fact witness,
Cody Full) and then opposing a delay request based in part on our need to speak with those

 SUBJECT: Defense Comments on Article 32 Report, U.S. v. Bergdahl

witnesses before the preliminary hearing. As a result of the prosecution's refusal to furnish us
contact information, our ability to interview Mr. Full before the hearing was thwarted. His
attorney advised us, without elaboration, that his client was unavailable until after the date of the
hearing.
10. The defense objects to LTC Burke's role. See generally para. 4a above. He selected the
charges to bring against SGT Bergdahl and is the named accuser. He also served in the quasijudicial role of special court-martial convening authority, in which capacity he engaged in
frequent ex parte communications with the prosecutors and made important decisions limiting
SGT Bergdahl's access to evidence, witnesses, investigative assistance, delay, and TS(SCI)
security clearance for his civilian defense counsel. The defense objects to the preliminary hearing
having been conducted under LTC Burke's authority and supervision and we object, in particular,
to his making any recommendation on disposition. Having already sworn to the charges, he
cannot plausibly claim impartiality. If, notwithstanding the objections we have stated, he does
submit a recommendation, we request that it be furnished to us immediately so we can submit
our comments to GEN Abrams.
11. We object to the government's failure to provide us with investigative assistance, in sharp
contrast with the ample investigative resources the government had available to it, to include the
resources impressively committed last year to the AR 15-6 investigation. You have correctly
ruled that the defense had demonstrated the need for investigative assistance.
12. In their cross-examination of a defense witness and in closing argument, the prosecution
sought to downplay concerns about SGT Bergdahl's mental health. The same prosecutors were
privy to his privileged behavioral health file as a direct result of a HIPAA violation by
government officials. We object to the prosecutors having engaged in advocacy about SGT
Bergdahl's mental health after the breach of his private behavioral health information. The
prosecution has refused to provide us with the documents by which confidential information was
improperly provided to them in violation of HIPAA.
13. Two critical pieces of evidence came to the attention of the defense in August 2015: a
classified 30-page report describing the military's five-year effort to recover SGT Bergdahl and a
classified video showing him in near-death conditions late in his captivity. The defense did not
have access to this evidence and requested government assistance to locate it. We requested a
delay, in part, to find this evidence, but the prosecutors opposed that request. See also para. 3
above. The delay should have been granted and these materials should have been furnished to us
before the hearing in any event.
14. As noted in the report, our cleansing-warnings objection to the consideration of SGT
Bergdahl's interview has been preserved. We renew it here out of an abundance of caution given
the waiver provision in R.C.M. 405(k).

 SUBJECT: Defense Comments on Article 32 Report, U.S. v. Bergdahl

15. The report misreads United States v. Gonzalez. Charge I and its specification cannot be
sustained given the uncontroverted evidence presented at the preliminary hearing with respect to
SGT Bergdahl's subjective intent.
16. The report misunderstands our analysis of the interaction between Articles 99(2) and (3),
UCMJ. Article 99(2) is the predicate referred to by the word "such" in Article 99(3). SGT
Bergdahl's duty was to protect Observation Post Mest, not Task Force Yukon much less any
other larger unit or command.
17. The report fails to take account of the fact that any unauthorized absence for which probable
cause was shown was terminated by the criminal act of third parties - a circumstance not
addressed by the Manual for Courts-Martial provision cited in the report.
18. The report suggested further factual development on the question of death or injury. This
would require re-opening the preliminary hearing and affording SGT Bergdahl the full panoply
of procedural rights. Doing so would materially delay completion of the case.
19. If he has not already done so, GEN Abrams should examine the classified report referred to
in para. 13 above before making any decision on the disposition of the charges. We are informed
that a copy is available at Fort Bragg. We examined a copy at the Pentagon after the preliminary
hearing was concluded.

FRANKLIN D. ROSENBLATT
LTC, JA
Individual Military Counsel