Bergdahl defense, trial counsel argue over classified documents

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Bowe Bergdahl (WTVD)

Access to classified documents and Sergeant Bowe Bergdahl's required uniform were at the center of a motions hearing held Tuesday morning.

The soldier, charged in a 2009 desertion case, returned to Fort Bragg for a pre-trial hearing ahead of a scheduled August courts-martial. It lasted just over two hours.

Appearing stoic, Bergdahl remained focused on the judge's bench from the start of the hearing in which he was accompanied by his military counsel.

Read more: Bergdahl enters plea during December arraignment

The defense argues they are unfairly restricted from access to classified evidence that will prove critical in their case, while the government maintains that a clearance process which ultimately includes trial counsel is necessary.

Who gets access to classified documents and how?

Military prosecutors, or trial counsel, revealed they have the potential to use 300,000 pages of classified and unclassified evidence during the trial.

The process to review these documents could take more time than currently allotted in a protective order. Army Colonel Jeffery Nance agreed that reasonable extensions should be requested and allotted to filter through the documents.

The defense later argued they should not be at the mercy of trial counsel to access and use classified documents and interview witnesses with sensitive information. One of the compromising factors included prosecutors acting as filters or handling information that could ultimately be denied.

The defense went on to argue they have as much right to classified material as trial counsel because they are also a part of the Department of Defense.

"They're not a party with elevated access to classified documents, said LTC. Franklin Rosenblatt, Bergdahl's military counsel.

Rosenblatt went onto say that a strict government order placed on a key witness with classified information had already prevented the defense from prepping for an Article 32 hearing. Outlining restrictions on the prosecutions' authority would prevent "the temptation to meddle with witnesses in the case," Rosenblatt argued.

The government argued that when the defense seeks classified material from the government, they need to be alerted.

Nance went on to recognize he understood both sides, but the trial "isn't going anywhere," if the two arguments persist.

He will make a determination on the language in the protective order at a later date.

Another pre-trial hearing is tentatively set for April.

Bergdahl's uniform

Before a quick, late-morning recess, Bergdahl's defense said the soldier should be allowed to wear his merit medals, including a Purple Heart, on his uniform.

Otherwise, a prejudicial view and a declaration of guilt is conveyed on a national media stage, they argued.

Judge Nance advised the defense to file a motion on the issue for him to make a decision ahead of the courts-martial. Nance reminded the court that panel members should not be consuming media on the case, therefore they wouldn't be tainted by the image of Bergdahl sans his medals.

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