The Bergdahl Block: How the Military Limits Public Access to Preliminary Hearings and What We Can Do About It

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Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused and the media must file a writ petition with a military appellate court to vindicate their rights. This leads to the second feature: these courts routinely find that they do not have jurisdiction to hear these claims. And when these courts deny the writ petitions, the accused and the media are left without an effective remedy. Recognizing this, military officials now block access to these hearings by mischaracterizing these challenges as Freedom of Information Act requests. They then tell the accused and the media to seek relief using the rights provided under that law, knowing none will be coming anytime soon.

Using the Bergdahl case as context, this Article describes this blocking maneuver. It then exposes the flawed reasoning that military appellate courts use when refusing to hear these constitutional claims. Finally, this Article offers legislative and regulatory fixes to ensure public access to these hearings.

Now is the time for change. In the last three years, Congress and the President have made significant changes to the military justice system. These changes have come in large part because the public lost trust and confidence in the military justice system. Transparency fosters trust and confidence. The more the public knows about what is considered at a preliminary hearing, the more trust and confidence the public will have in the commander’s prosecutorial decision based on that hearing, and, ultimately, in the overall role of commanders in the military justice system.