(Washington DC) – Judicial Watch today announced that oral argument will be held on Thursday, November 10, 2016, in its appeal of a Freedom of Information Act (FOIA) lawsuit seeking an Obama Defense Department memo regarding the exchange of five senior al Qaeda leaders held at Guantanamo Bay, Cuba, for U.S. Army Sgt. Bowe Bergdahl. Bergdahl walked off his post in Afghanistan, was held captive for five years, and is now facing a court-martial (Judicial Watch v Department of Defense (No. 1:14-cv-01935)).
Date: Thursday, November 10, 2016
Time: 9:30 a.m. ET
Location: Courtroom 31
U.S. Court of Appeals for the District of Columbia Circuit
333 Constitution Ave. N.W.
Washington, DC 20001
A lower court found the document, known as the “Lumpkin Memorandum,” was exempt from production under FOIA Exemption B5’s “deliberative process privilege.”
Judicial Watch contends that Defense Secretary Chuck Hagel expressly adopted the memo, making it a final agency decision. Final decisions are not protected from disclosure under the deliberative process privilege.
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 that included the five Taliban leaders. 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. No such notice was provided in Bergdahl’s case.
“Tomorrow’s court hearing highlights how the Obama administration doesn’t want to the American people to know its reasons for its dangerous terrorist swap for Sgt. Bergdahl,” said Judicial Watch President Tom Fitton.