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Bergdahl Lawyer Files Lawsuit Over FOIA Request

There has been a new development in the battle to release certain classified documents to Sgt. Bowe Bergdahl's defense counsel before his upcoming court-martial: Attorney Eugene R. Fidell has filed suit against the Department of Defense, claiming that his Freedom of Information Act request to receive the documents has been purposefully delayed. Bergdahl's legal team is looking to review all communications between Congress and the Department of Defense since Bergdahl's 2014 release from Taliban captivity.

As the Fay Observer reports, Fidell is claiming that he and Bergdahl's other attorneys need timely access to the documents in order to properly defend Bergdahl in his court-martial scheduled for August. "The (Department of Defense's) failure to afford expedited processing to plaintiff's FOIA request is arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence on the whole record and contrary to law," the lawsuit states. "Given the scheduled date of Sgt. Bergdahl's trial, the requested records have a particular value that will be lost if not disseminated quickly."

Fidell's suit claims that his expedited request was placed in normal processing order due to the DoD's geographical access to the requested documents-- an assertion that Fidell claims is untrue. In the normal processing order, the DoD claims that they will not be able to deliver the documents to Fidell for nine months.

Suspected "Congressional Influence"

Bergdahl's legal team claims that there has been undue congressional influence on the Bergdahl case, a theory they plan to prove with their FOIA request. "Given the extraordinary level of sustained public interest in Sgt. Bergdahl's case and the clear impropriety of congressional influence over official decision-making in individual cases arising under the Uniform Code of Military Justice, the requested records will serve an urgency purpose and be meaningful in the sense that they will provide a greater understanding of actual or alleged federal government activity on the part of the public-at-large than that which existed before such information was disseminated," the suit details.

The suspicion is likely linked to statements made by Senator (and former POW) John McCain late last year. When speaking to the Boston Globe, McCain characterized Bergdahl as a deserter and said that, even if Bergdahl escaped punishment via a court-martial, the Senate Armed Services Committee would hold him responsible. "And I am not prejudging, OK, but it is well known that in the searches for Bergdahl, after—we know now—he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter," McCain said, adding: "We need to have a hearing on that."

Attorney Jordan's Take

While Bergdahl's case has undeniably captured the attention of Americans nationwide, there seems to be little concern—especially from prominent political figures—for due process. According to Attorney Joseph Jordan, Senator McCain joins fellow GOP figure Donald Trump in inappropriately putting forth a perspective on Bergdahl to the public that has not yet been sorted out in a court of law.

"Even Congress seems to have an issue with innocence until proven guilty. Senator McCain on is now on record stating that SGT Bergdahl is a deserter. His statement is as prejudicial as it gets. How can a member of congress be so irresponsible as to make such a statement understanding our principals of justice for which he is ultimately responsible for as a lawmaker?" Attorney Jordan states. "No one can expect Sgt. Bergdahl to get a fair trial when our lawmakers are passing judgment before the trial even occurs. This kind of thinking bleeds into every mind of a potential panel member for a court martial. It has to stop. Even Congressmen need to be held accountable for their words."

If you are a military servicemember that has been accused of a crime, we invite you to contact our firm today. Joseph Jordan, Attorney at Law is a military defense attorney with over a decade of experience in the U.S. Army. He now travels the globe to ensure that accused members of our armed services are defended against undue allegations.

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Categories: Military Law News

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