Judicial Watch announced today that on February 11, 2015, it filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Defense (DOD) to obtain records related to the “initial report” of the U.S. Army’s review of the disappearance of Army Sgt. Bowe Bergdahl. The lawsuit was filed in the U.S. District Court for the District of Columbia (Judicial Watch v U.S. Department of Defense (No. 1:15-cv-00212)).
Bergdahl left his post and was held captive by the Taliban-aligned Haqqani network in Afghanistan from June 2009 until May 2014. The circumstances surrounding Bergdahl’s disappearance and subsequent capture have become the subject of intense controversy. He was released on May 31, 2014, as part of a prisoner exchange by the Obama administration for five Taliban terrorist leaders who were held at the detention center at Guantanamo Bay, Cuba.
Judicial Watch filed the lawsuit after the DOD failed to comply with a FOIA request submitted on October 22, 2014, asking for:
Any and all records of communications, including by not limited to, emails and text messages, from or to (as either a direct recipient, “Cc” or Bcc”) Secretary of Defense Chuck Hagel, and the following members of the Joint Chiefs of Staff: the Chairman of the Joint Chiefs of Staff; the Military Service Chiefs of the Army, Navy, Air Force and Marine Corps; and the Chief of the National Guard Bureau, regarding, concerning, or related to the ‘initial report’ of the Army’s review of the disappearance of Bowe Bergdahl from his post and his subsequent capture by Taliban forces. The time frame of the records sought is September 1, 2014 to October 28, 2014.
The prisoner exchange by the Obama administration has also been the subject of intense controversy. The Government Accountability Office found that the Obama administration violated “clear and unambiguous” law in the prisoner swap. The National Defense Authorization Act for Fiscal Year 2014 says that all prisoner transfers from Guantanamo Bay require 30 days’ notice to Congress. Such notice was not provided in Bergdahl’s case.
This is the latest in a series of lawsuits filed by Judicial Watch concerning the controversial prisoner exchange for Bergdahl. On November 18, 2014, Judicial Watch filed lawsuits against the U.S. Departments of Defense and State to obtain records concerning arrangements made between the U.S. government with third parties or other states regarding agreements and monetary payments to secure the release of Bergdahl from captivity in Afghanistan. On January 2, 2015, Judicial Watch filed a FOIA lawsuit against the U.S. State Department seeking access to the bilateral Memorandum of Understanding between the U.S. and Qatar relating to the terrorist release.
The Army’s fact-finding investigation concluded in December, but the Obama administration withheld the results from the public. Despite today’s announcement that Bergdahl would be charged with desertion and misbehavior before the enemy, which could carry the death penalty, the Obama Defense Department announced that reports about Bergdahl would remain secret.
“Given today’s announcement, we now know why the Obama gang would keep a nearly five-year-old report secret about Bergdahl’s desertion,” said Judicial Watch President Tom Fitton. “The Obama administration lied and violated the law in releasing five terrorist leaders from captivity in exchange for Bergdahl, and is violating the federal open records law to cover its tracks.”
With respect to today’s announcement, Fitton added, “The untoward delay of justice by the Obama Pentagon is unseemly at best, and – as the decision was conveniently delayed well past the November elections – one must wonder if politics trumped military discipline and order among the Pentagon leadership who should know better.”