An Expert Declaration by Philadelphia partner Larry Fox was published as part of a Request for Interpretation filed by the legal team of U.S. Army Sergeant Bowe Bergdahl, who is facing charges stemming from his 2009 disappearance from his post in Afghanistan.
In March 2015, the Army announced charges against Bergdahl, which stemmed in part from a 2014 interview with Major General Kenneth Dahl. Shortly afterward, Bergdahl’s lawyer Eugene Fidell asked for the transcript of that interview to be made public.
On Tuesday, Sept 16, more than 80 days after his request, Fidell was informed that he hadn’t asked the proper authority for permission to lift the protective order to release the documents.
Fidell then released the Request for Interpretation, to demonstrate the team’s attempts to compel the Army to release the summary and transcript.
Larry is the supervising lawyer of the Ethics Bureau at Yale who has also taught ethics at Harvard, the University of Pennsylvania Law School and Cornell, as well as testified on ethics and professional responsibility issues in dozens of proceedings across the country. In his declaration, dated June 23, 2015, he concluded that the disclosure of the transcript and summary of MG Dahl’s interview “could not possibly prejudice, let alone materially prejudice, an adjudicative hearing.”
Larry noted the significant public interest at stake and the First Amendment protection the Supreme Court has emphasized in it case law on the topic. He also noted that the documents in question were already before the presiding official at the preliminary hearing and that release to the public would have no impact on that official. Larry also discussed the stream of negative publicity against Sgt. Bergdahl and said that “it is hard to imagine a litigant who has a greater right or need to respond than this applicant.”
At a hearing on Thursday, Sept. 18, that will determine if Bergdahl will face a court-martial, Fidell repeated his call for the report to be released, saying it would help tell his client’s side of the story and counteract some of the negative publicity he has faced since his release.