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Thursday, July 18, 2024 | Back issues
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Bowe Bergdahl Trade Catches Vice News’ Eye

WASHINGTON (CN) - A Vice News reporter seeking records about the five Guantanamo Bay prisoners exchanged for U.S. Army Sgt. Bowe Bergdahl filed four federal complaints this week.

Bergdahl, the soldier whom the Taliban held captive in Afghanistan from June 2009 to May 2014, is the subject of the reporter Jason Leopold's earliest complaint this week, filed Tuesday.

Leopold, of Beverly Hills, Calif., claims to have submitted a request to the State Department about Bergdahl under the Freedom of Information Act on July 24, 2014. Bergdahl had just returned to active duty at the time, two months after the Taliban released him as part of a trade for five of its members being detained indefinitely at Guantanamo Bay.

Guantanamo's chief prosecutor Brig. Gen. Mark Martins told reporters back in May that he reviewed all of cases against these five men, and none of them could have been prosecuted.

Leopold wants all State Department records on "the exchange of any of the five Guantanamo detainees (Mohammed Fazl, Khairullah Khairkhwa, Mullah Norullah Noori, Abdul Haq Wasiq, and Mohammed Nabi Omari)," his complaint states (parentheses in original).

He also wants to know about the U.S. government's "other efforts ... to gain information about, or the release of, Sgt. Bergdahl after his disappearance from his post in Afghanistan from June 30, 2009 to the present."

Bergdahl fell into Taliban hands shortly after leaving his combat outpost in the Paktika province on June 30, 2009.

An investigation into Bergdahl's disappearance and capture remains ongoing, and the Government Accountability Office announced in August that it was illegal for the Defense Department to keep Congress in the dark about the prisoner exchange.

Leopold says the State Department acknowledged receipt of his request in August, and granted him a fee waiver, but that it has not otherwise answered him. The department refused to expedite Leopold's request, according to the complaint.

Another records request that Leopold submitted to the State Department this past June, also pertaining to Guantanamo, met a similar fate, a separate action alleges.

This complaint, filed Thursday, pertains to Leopold's request for records on a Jan. 22, 2009, executive order.

Leopold says the order involves the "review and disposition of individuals detained at the Guantanamo Bay naval base and closure of detention facilities."

A section of the order regarding "diplomatic efforts" says that "the secretary of State shall expeditiously pursue and direct such negotiations and diplomatic efforts with foreign governments as are necessary and appropriate to implement this order,'" Leopold says.

The Vice News reporter, who notes that he has been published by The Guardian, Wall Street Journal and other publications, filed two other federal FOIA complaints Thursday.

One complaint against the State Department involves a woman who was released from a Pakistani prison in fall 2012 and "air-lifted from the prison in a helicopter piloted by a person bearing a shoulder patch with the marking 'Department of State Air Wing.'"


Leopold attributed the information about Rimsha Masih, whom Pakistan was holding for blasphemy, to a May 27, 2014, ABC News report.

The Bureau of International Narcotics and Law Enforcement Affairs describes the historic purpose of its Air Wing as "conducting aerial eradication and interdiction operations in drug-producing countries under bilateral agreements."

More recently the wing has been used to support "Embassies in high threat areas with passenger and cargo movements where commercial aviation is not secure," the bureau's website states.

Leopold submitted two FOIA requests on July 25, 2014, about the history of the Air Wing, dating back to 1980, as well as records on Masih since Jan. 1, 2012.

Though the State Department acknowledged receipt of Leopold's request and granted him a fee waiver in August, the reporter is still awaiting a final response, his complaint states. The department refused to expedite his request.

Leopold's third complaint Thursday, filed with the Department of Defense, has the most complicated history of the group. On July 8, he allegedly requested an index of all reports prepared in the last five years by the Office of Net Assessment (ONA), which he describes as "an internal planning think tank for the Department of Defense."

The office "develops and coordinates net assessments of the standing, trends, and future prospects of US military capabilities and potential, in comparison with those of other countries or groups of countries, so as to identify emerging or future threats or opportunities for the United States," according to the complaint.

Whereas Leopold is allegedly awaiting final responses on his State Department requests, the Defense Department has told him that it cannot locate responsive records about ONA, according to the complaint.

Leopold has allegedly highlighted "an article in Talking Points Memo which referred to an index of ONA reports" and appealed the denial of his request to no avail.

On July 18, the same day that the Defense Department shot him down, Leopold requested "the title pages and summaries of reports prepared by the Office of Net Assessment," according to the complaint.

The Defense Department allegedly refused this request on Aug. 4, 2014, "stating that no documents of the kind described in the request could be located and that conducting a further search would create an undue hardship."

Leopold said that ONA had already made a list similar to what he sought but the Defense Department told him that the previous list ONA created "went beyond what was required in FOIA," according to the complaint.

The department cited sequestration as the reason why ONA no longer has the resources to make such a list, Leopold says.

ONA allegedly told Leopold "that it would require too much effort to determine what documents are applicable and copy the title pages."

Leopold says he made another FOIA request with the Defense Department on Aug. 4, this time seeking "any and all reports prepared/written/drafted by or for the Office of Net Assessment from January 2009 through the date the search for responsive records is conducted."

On Aug. 7, the Defense Department rejected this request as duplicative, according to the complaint. Leopold says the department later explained further that "his request was so broad as to impose an unreasonable burden on the agency.

Leopold's appeals have been unsuccessful.

The reporter is represented in all four matters by attorney Jeffrey Light.

He has filed 15 lawsuits prior to this week's four since 2012, according to Courthouse News records.

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