UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                               TOZZI, CELTNIEKS, and PENLAND
                                   Appellate Military Judges

                              UNITED STATES, Appellant
                                           v.
                           Sergeant ROBERT B. BERGDAHL
                             United States Army, Appellee

                                    ARMY MISC 20160118

                     Headquarters, U.S. Army Forces Command
               Christopher T. Fredrikson, Military Judge (arraignment)
                 Jeffery R. Nance, Military Judge (motions hearing)
                  Colonel Vanessa A. Berry, Staff Judge Advocate


For Appellee: Captain Mathew D. Bernstein, JA (argued); Lieutenant Colonel
Jonathan F. Potter, JA; Lieutenant Colonel Franklin D. Rosenblatt, JA; Captain Nina
S. Banks, JA; Captain Mathew D. Bernstein, JA; Eugene R. Fidell, Esquire (on brief).

For Appellant: Captain Jihan Walker, JA (argued); Colonel Mark H. Sydenham, JA;
Captain Jihan Walker, JA; Captain Carling M. Dunham, JA (on brief).


                                           28 April 2016

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                    MEMORANDUM OPINION AND ACTION ON APPEAL
                       BY THE UNITED STATES FILED PURSUANT TO
                   ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.


TOZZI, Senior Judge:

       Appellee is charged with one specification of desertion and one specification
of misbehavior before the enemy in violation of Articles 85 and 99, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 885 and 899 (2012).

       The military judge issued a Protective Order for Classified Information
[hereinafter Protective Order] (14 January 2016). Following that order, the
government filed a request for clarification based on the parties’ dispute whether
BERGDAHL —ARMY MISC 20160118

Original Classification Authority (OCA) 1 approval was required for defense access
to classified information. The defense also filed a motion for an “Order Concerning
Defense’s Access to Classified Evidence in Possession of Trial Counsel.” On 2
February 2016, the military judge issued a ruling and order in response to these
motions. (Ruling and Order: Defense Access to Classified Information [hereinafter
Access Order] (2 February 2016)).

      On 5 February 2016, the government filed notice of appeal of the military
judge’s ruling and order pursuant to Rule for Courts-Martial [hereinafter R.C.M.]
908(a). On 9 February 2016, this court granted the government’s Writ of Prohibition
and ordered a Stay of the Proceedings, pending disposition by this court of the
pending appeal pursuant to Article 62, UCMJ.

       This case is before this court pursuant to a government appeal of the military
judge’s ruling in accordance with Article 62, UCMJ, and R.C.M. 908(a). The
government asserts “the military judge erred by issuing a protective order and final
ruling that directs the unauthorized disclosure of classified information and grants
defense unfettered access to classified information.” We disagree with the
government’s interpretation and find that the military judge’s Access Order is in
compliance with Military Rule of Evidence [hereinafter Mil. R. Evid.] 505 and
Executive Order 13,526, Classified National Security Information, 3 C.F.R. 13,526
[hereinafter EO 13526] (29 Dec. 2009).

                                  BACKGROUND

      In the Access Order, the military judge ordered the following:

             8. All [classified information] which the government may
             offer into evidence at trial will be immediately provided to
             the defense within the constraints of the 14 January
             [Protective Order]. This is a continuing duty. Thus, upon
             government determination that new [classified information]
             may be offered into evidence at trial, trial counsel will
             notify defense counsel within 24 hours and allow defense
             to access said [classified information] within the terms of
             the [Protective Order].

             9. Trial counsel will, upon receipt of this order,
             immediately provide defense counsel access to all

1
  An OCA is defined as “an individual authorized in writing, either by the President,
the Vice President, or by agency heads or other officials designated by the President,
to classify information in the first instance.” EO 13526, para. 6.1.(gg).
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BERGDAHL —ARMY MISC 20160118

             [classified information] in possession of trial counsel, for
             which the government does not intend to assert the
             privilege. Defense counsel access to this [classified
             information] will only be made in compliance with the
             terms of the [Protective Order]. The requirements for
             appropriate security clearances and involvement of the
             defense security officer, still apply. This is a continuing
             requirement.

             10. No later than 29 February 2016, trial counsel will
             provide a MRE 505(h)(1)(A) declaration to the court and
             defense counsel (unless in camera review is requested in
             accordance with MRE 505(h)(1)(B)) detailing all
             documents in possession of the trial counsel, for which
             trial counsel asserts the privilege. In compiling this
             declaration, the court reminds the government to consider
             and apply alternatives to full disclosure as outlined in
             MRE 505(h)(2)(A). This is a continuing requirement.

             11. Trial counsel will take no action to prevent or
             interfere with defense counsel access to [classified
             information] through their own efforts to investigate and
             prepare for trial. Defense counsel will ensure that they
             comply with all applicable [Protective Orders, Executive
             Orders], Regulations and Rules of Evidence as they come
             in contact with [classified information] or potential
             [classified information].

(Access Order, para. 8-11) (emphasis added). 2

2
 Further, the military judge’s Protective Order, contains the following pertinent
parts:

             d.(1) Persons subject to this Protective Order are
             obligated by law, regulation, and the terms of this Order
             not to disclose any classified information in an
             unauthorized manner or to an unauthorized recipient.

             ...

             h.(2) The Accused and the Defense team may gain access
             to classified information in possession, custody or control

                                                                            (continued…)
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BERGDAHL —ARMY MISC 20160118

                             LAW AND DISCUSSION

       In an appeal of the military judge’s Access Order under Article 62, UCMJ, we
review for an abuse of discretion. See United States v. Scott, 48 M.J. 663, 666
(Army Ct. Crim. App. 1998). In reviewing an interlocutory appeal by the
government, we “may act only with respect to matters of law.” Art. 62(b), UCMJ;
see R.C.M. 908(c)(2). In conducting this limited review of matters of law, “the
question is not whether a reviewing court might disagree with the trial court’s
findings, but whether those findings are ‘fairly supported by the record.’” United
States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004) (quoting United States v. Burris,
21 M.J. 140, 144 (C.M.A. 1985)). To be an abuse of discretion, “[t]he challenged
action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (citations and internal
quotation marks omitted).

       We find the military judge did not abuse his discretion in his rulings
regarding the defense access to classified information. We find that neither the
military judge’s Access Order nor his Protective Order “direct the disclosure of
classified information” which has not been subject to a reasonable opportunity to


(…continued)
           of the Trial Counsel in this case only through Government
           disclosures required by the Rules for Courts-Martial or
           Military Rules of Evidence, including, but not limited to,
           Rules for Courts-Martial 701 and 703. If Defense Counsel
           and other members of the Defense team seek access to
           classified information in furtherance of their
           representation of the Accused directly from any
           Government agency or department, any current or former
           Government employee, or any other United States entity
           and intend to disclose that information to others, Defense
           Counsel will comply with the terms of this Protective
           Order and MRE 505(i), including the notice requirements.

             h.(3) . . . . No one will be given access to classified
             information except to the extent authorized by Executive
             Order 13526 and MRE 505. If preparation of the defense
             requires that classified information be disclosed to persons
             not named in this Protective Order, the Defense Counsel
             shall promptly provide proper notice to the Trial Counsel
             and the Trial Counsel shall, as appropriate, promptly seek
             any required security clearances and/or OCA consent to
             disclose information to such persons.


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BERGDAHL —ARMY MISC 20160118

review for potential assertion of government privilege under Mil. R. Evid.
505(h)(1)(A), and do not preclude the government from fully exercising its claim of
privilege under Mil. R. Evid. 505(h)(1)(A). The government avers, “[s]imply put,
the OCAs must be given an opportunity to assert or waive the privilege prior to
release of any classified information.” We recognize that the government agencies
which possess classified information must have reasonable opportunity to assert a
claim of privilege. The military judge’s orders do not diminish this opportunity to
exercise this vital national security check.

       Under the parameters set by the trial judge, the government is able to fully
exercise its right to claim that disclosure of certain classified information would be
detrimental to national security at any stage of the proceedings, including occasions
when defense counsel seek access to classified information without pre-clearance
from trial counsel and/or the OCA or “the head or designee, of the executive or
military department or government agency concerned” [hereinafter agency head or
designee]. Mil. R. Evid. 505(h)(1)(A). Defense counsel also do not have
“unfettered” access to classified information under the military judge’s Access
Order and related Protective Order. Defense counsel must meet the requirements of
federal law, executive orders, and policies to access classified information. This is
hardly “unfettered” access.

      The military judge recognizes Mil. R. Evid. 505 does not contemplate “open
discovery,” and directs discovery be accomplished within the strictures of the
Protective Order, which is clear in its terms, mandating all parties to follow all
applicable laws and regulations regarding classified information. Specifically,
paragraph h of the Protective Order clearly covers access to classified information,
which will be allowed only to the extent authorized by EO 13526 and Mil. R. Evid.
505, and in accordance with the terms of the Protective Order.

       Contrary to the assertion of the government, we find the military judge did not
abuse his discretion in ruling “the court is not convinced that EO 13526, MRE 505
or any other law requires the defense to obtain OCA consent before seeking access
to [classified information] in possession of ‘any government agency, employee,
information system or entity.’” Once defense counsel seek access to classified
information, it is incumbent on the government to ensure that any access to
classified information is provided in accordance with applicable law. In addition,
defense counsel must provide trial counsel notice any time they seek to disclose any
classified information to which they gain access. Mil. R. Evid. 505(i); see (Access
Order, para. 11). We note that the government would have an opportunity at this
point in the proceedings to exercise its privilege under Mil. R. Evid. 505(h)(1)(A) if
it chose to do so.




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BERGDAHL —ARMY MISC 20160118

       The government’s obligation to require proper requester clearance, need to
know, and its right to claim privilege under Mil. R. Evid. 505(h)(1)(A) at the
appropriate level required by applicable laws and EOs, is not diminished regardless
of where defense counsel seeks access or whether they have pre-cleared their efforts
with the trial counsel. This is contemplated by Mil. R. Evid. 505, EO 13526, and
paragraphs h(3) and (4) of the Protective Order. The government never loses its
right to exercise its privilege under Mil. R. Evid. 505(h)(1)(A). The Access Order
recognizes: “The possessor of [classified information] is best positioned to know
that the information is classified and whether they have disclosure authority for said
information. . . . National security is well protected by EO 13526’s scheme for
placing the onus on the discloser to seek whatever approval is required prior to
disclosure.” (Access Order, para. 7) (emphasis added). We do not read the military
judge’s Access Order to allow for the OCA or agency head or designee to be cut out
of the process in any way.

       Based upon this language we do not read the Access Order as providing carte
blanche for any possessor of classified information to release classified information
to defense counsel. We disagree with the government and do not read the order to
imply that a possessor of classified information can release said classified
information without providing an OCA or agency head or designee the opportunity
to assert the government privilege under Mil. R. Evid. 505(h)(1)(A). We hold that
the agency head or designee must be provided with the opportunity to assert the
government privilege under Mil. R. Evid. 505(h)(1)(A) before any classified
information is released to any party.

        Further, the government asserts the military judge’s Access Order is overly
broad in that it requires trial counsel to “immediately provide defense counsel access
to all [classified information] in possession of trial counsel, for which the
government does not intend to assert the privilege.” (Access Order, para. 9). The
military judge’s Access Order is issued in the context of discovery in this case, and
it is entirely reasonable to infer that paragraph 9 of the Access Order refers to
classified information which is material within the terms of R.C.M. 701. To the
extent it is construed otherwise, we hold that trial counsel is only required to
disclose to the defense classified information that is material under R.C.M. 701.

       The military judge’s Access Order does not require the government to do
anything contrary to law or regulation, and no law or regulation requires the defense
counsel to do anything beyond what is required of them by the Access Order and the
Protective Order in this case. After review of Mil. R. Evid. 505 and EO 13526 in
conjunction with the Access Order and incorporated Protective Order, we find the
military judge’s orders are well within the bounds of reasonable discretion.




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BERGDAHL —ARMY MISC 20160118

                                  CONCLUSION

       Based upon our review of the record, the appeal of the United States pursuant
to Article 62, UCMJ, is DENIED. The stay on the trial proceedings imposed by this
court is lifted.

      Judge CELTNIEKS and Judge PENLAND concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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