No. 17-0069/AR. In re Robert B. Bergdahl, Petitioner.  On consideration of the petition for extraordinary relief in the nature of writ of mandamus and Petitioner’s motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal and motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc, it is ordered that said motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal is hereby denied, that said petition for extraordinary relief is hereby denied, and that said motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc is hereby denied as moot.

This was Bergdahl’s sixth writ petition at CAAF, and was previously discussed here. #5 was discussed here. #4 was discussed here. #3 was discussed here. #2 was discussed here. #1 was discussed here.

81 Responses to “Bergdahl goes 0 for 6 at CAAF”

  1. anon says:

     
    My understanding of facts is pet filed writ with request for en banc, ACCA did not act as quickly as pet hoped, pet filed pet to CAAF on substantive issues (from my perspective requested relief should have been petition for mandamus to compel ACCA to act). 
     
    So . . . for sport fans out there.  Doesn’t appear that ACCA ever acted on the writ petition/request for en banc.  Does the CAAF denial moot the issue for ACCA to act on the writ petition/en banc.  Or is ACCA still required to act on writ/request for en banc. thereby permitting pet to again file before CAAF (#7)?
     

  2. Concerned Defender says:

    What % batting average does 0-6 translate into??   I’m glad to see that CAAF is doing the right thing time and again. If Obama has any sense of military duty and obligation as keeping morale high as the Commander in chief he’ll let this work through the Courts as it should.  Otherwise BB will get an undeserved windfall of exoneration for his sinister crimes that put others in direct danger and extended deployments and wasted probably tens of millions of tax dollars, forced us to negotiate and trade 5 top terrorists for him, a windfall of hundreds of thousands of dollars in back pay, and other benefits.    

  3. (Former)ArmyTC says:

    CD, you are the only person on the planet who thinks Obama is even thinking about giving Bergdahl a pardon.
     
    Well, maybe Alex Jones too.

  4. Concerned Defender says:

    @ Former ArmyTC – “the only person on the planet?”  Hmmm…  
    1.  Factually wrong by wild margins…
    2.  Ad Hominum much?
     

  5. anon2 says:

    To understand CD’s feelings about the pardon, remember that he’s the same guy who insisted that both the 15-6 officer and Article 32 officer were taking orders from Obama when they recommended leniency.

  6. Concerned Defender says:

    @ Anon2 – do you have a single other reason that an I/O or General officer would hear evidence of a crime and effectively recommend no charges??  The responsibility isn’t “personal opinion” is it?  It’s a legal determination if there is some evidence of a crime and a recommendation consistent with same.  It’s not a “feel good” party.   If, as an investigator, you look at the entire fact pattern and don’t conclude there’s some evidence of SERIOUS crimes, there are limited reasons.  Incompetence (quite possibly on the I/Os part because I’ve seen and destroyed one of his “investigations” in the past (a 4th grader could done a better job than he did), personal feelings differing with the law (inappropriate IO “nullification”), or interference from above.  I reject entirely that there wasn’t “some” evidence of serious crimes.  
    Got anything else?  

  7. Passing By says:

    “What % batting average does 0-6 translate into??”
    Finally, a question on this blog I can answer.  “.000”
    Drop mike…
     

  8. stewie says:

    Just so I’m clear CD, there is never a time when a 32 officer agrees that an actual crime has been committed, yet recommends not going to trial?  Really? You sticking with that answer?  You can’t come up with any reason why an IO or GO would say “yep, there’s a crime, but don’t go to trial” that doesn’t involve a POTUS conspiracy?
     
    I mean I feel like a “4th grader” could come up with at least one.

  9. Concerned Defender says:

    @ stewie.  I’m not the smartest guy evidently.  I simply read the law and apply it. 

    (a)Preliminary Hearing Required.—
    (1)
    No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused.

    (2)The purpose of the preliminary hearing shall be limited to the following:
    (A)
    Determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.

    (B)
    Determining whether the convening authority has court-martial jurisdiction over the offense and the accused.

    (C)
    Considering the form of charges.

    (D)
    Recommending the disposition that should be made of the case.

    Now I suppose you’re going to give an example of when it is acceptable to not prosecute someone when there’s evidence of a crime: fine. Be my guest. 
    But if you’re an IO and sit and review evidence of a murder or bankrobbery, and then your recommendation is “He’s a good kid, just a bit confused, he didn’t mean to murder or steal, so let’s just let him go,” then you’d be failing in your duties as an IO.  Eg, what would be the point of going through an ART 32 if the end result was to ignore the evidence presented???
     
     

  10. (Former)ArmyTC says:

    Do you even know what an ad hominem is? Because it doesn’t mean what you think it means. “You’re the only person on the planet who thinks that” is an opinion. “You are a hypocrite” is an ad hominem. 
    According to almost every comment you’ve ever posted on a blog post about sex assault you would find it acceptable to not prosecute anyone accused of sexual assault if the victim’s account meets the UCMJ definition. 
    So there is your example. Now, please, a bridge is missing its troll somewhere. You are missed at your day job. 
     

  11. GEN (R) Sinepeguh says:

    Could we get back to the topic at hand?  Bergdahl engaged in serious misconduct.  Some would consider it the most serious offense in the UCMJ.  Why was this case not referred capital?

  12. Vulture says:

    General (R).  I’ll invite you to look at the ACCA web page that has all the opinions on it.  Memorandum, slip, or published.  Go down the list one by one.  Stop when you get to two military related offenses.  You’ll get a sense of how far off topic the discussion has gone.  Concerned Defender is right: Pardon?  What a ding-dong.  But this serious offense it looking pretty lonely and it does not speak well of where the UCMJ has gone already.

  13. TC says:

    Pretty sure he’s not a General, retired or otherwise.  And while most of us aren’t using our real names, it just seems that using that moniker should disqualify him from participating in serious conversation.  But maybe I’m being too ad hominem.

  14. Generation Retired Sinepeguh says:

    TC, how about this moniker?  Is this better for your sensitive sensibilities?  Rather than try to censor folks, how about contribute something useful to this important topic. 

  15. Vulture says:

    This is where things go off track.

  16. TC says:

    It’s not that my sensibilities are offended, it’s just hard to engage in a meaningful discussion with someone using a name you’d expect to see on a bathroom stall after “for a good time, call…”  As I’m sure you realize, it’s not the use of General that caught my attention.  Seems like an odd choice if you’re seriously trying to engage with members of a professional community. 

  17. Concerned Defender says:

    To answer the question presented, if I recall correctly the charges are ART 99 (misbehavior before the enemy) and ART 85 (desertion).  While technically this/these could carry a death or life sentence, that’s simply not going to happen.  A capital case would require massive additional resources and given that no panel would sentence him to death it’s a tactically wise decision to not pursue it.  The realistic sentence for him is probably going to be in measured in “good time” or months or maybe years depending on the aggravation (if it can be reliably proven that lives were lost or put in danger, or others injured, and how much money was wasted in the search and rescue, etc.).  While I personally think he should spend a decade or three in confinement, odds are he’ll get less than a decade total confinement if anything at all.  I doubt any panel member has the desire to put him away for greater than a decade.  Maybe, but it’s unlikely.  He certainly isn’t going to get life in confinement, and I doubt a single person on your average panel would vote for death – so these would be pointless to pursue. 
     

  18. stewie says:

    “Recommending the disposition that should be made of the case.”
     
    CD, what do you think that means? Why even have that if you think that the correct answer is that if you find PC for the crime, then it automatically goes to trial, and any IO who recommends otherwise isn’t doing their duty.
     
    Doesn’t sound very concerned defendery to me.

  19. Concerned Defender says:

    “Recommending the disposition that should be made of the case.” CD, what do you think that means? Why even have that if you think that the correct answer is that if you find PC for the crime, then it automatically goes to trial, and any IO who recommends otherwise isn’t doing their duty. Doesn’t sound very concerned defendery to me.

    Is this a joke?  By way of recommending a disposition, it is implied and seemingly obvious the recommendation would be consistent with the evidence presented.  If there is insufficient evidence of a crime, the recommendation would be no charges.  If there is evidence of different crimes than the allegations, recommendation would be to charge different crimes.  If there is evidence of the alleged crimes, then a recommendation of a consistent disposition (NJP, SPCM, GCM, as appropriate).  But in no situation does it imply that an IO should hear evidence of a crime consistent with the allegations, and then do an about-face and recommend effectively to do nothing about it… a “feel good” parade windfall for the accused and a stab in the eye for justice.  [By way of example, the FBI in July announced a litany of criminal misconduct by Hillary Clinton and then for reasons totally mysterious to everyone, said it would not be recommending charges – the ONLY explanation is pure politics.  And that is ethically and intellectually wrong and Comey should be sanctioned as a lawyer for such a move as that goes far beyond prosecutoral discretion.].  Look at it from the other perspective for your answer.  If an IO heard no evidence of a crime, but simply didn’t like the accused, would a recommendation to go to trial anyway withstand any scrutiny.  Afterall, presumably you’ve got an entire MJ office who believes there’s probable cause to charge a person under the UCMJ and the IO is just one individual with a perhaps skewed view of the world.  That’s why it’s a non-binding recommendation.  Because if (and when) the CG and SJA read a left-field non-binding recommendation that a (bank robber, murderer, child molester, deserter, etc.) walk free they are free to disregard the absurd recommendation.
    Here we have overwhelming evidence, including self admission, that BB committed the crimes.  The recommendation to essentially do nothing about it is so far removed from reality as to be discarded as absurd, and an offense to the integrity of the process and the good of the service. Many of the serious problems we have with the justice system is that the process is so damaged by individuals like James Comey, or the BB ART 32 IO, who insert their own personal opinion (which is clearly corrupted in some fashion) rather than following the rule of law.  I recall once learning that justice is blind and applied equally. It’s not different if your name is Clinton or Bergdahl.  
    And your ad hominum attack once again shows your inability to debate the issue, and your lack of understanding that my chosen screen name doesn’t mean I’m a brainless cool-aid drinker; I also defend the process and integrity of the service, as well as individuals. 

  20. DCGoneGalt says:

    I see concerned defender and stewie are still pretending they are two separate people. 

  21. Lieber says:

    I think Bergdahl should hire Concerned Defender.

  22. stewie says:

    I don’t think anyone should hire him unless they check with him first to make sure he isn’t personally offended by the crime they committed. Either that or it’s never crossed his mind to argue on behalf of his client for no referral if the PC standard is met.  Neither of those would give me a warm fuzzy feeling.

  23. Angry Clown says:

    It seems that a lot of people (or more than I would have guessed, perhaps) think that Bergdahl will get little or no punishment if his case does go forward.  I don’t get it.  This seems like the most serious misconduct that a soldier can engage in.  The kind of misconduct that truly does carry the risk of undermining the entire mission on the Army level, not just the unit level.  I’m not saying he deserved a capital referral.  I’m sure he suffered during his captivity (though he should only get so much credit for that since that’s a risk he took).  But why not LWOP or a very lengthy term of years? 

  24. Concerned Defender says:

    Angry Clown gets it… :)  I think a fair sentence would be one that robs him of a few decades of his life and all VA benefits and other entitlements of service.  20-30 years confinement and a DD would suit justice in my view.
    @ Stewie.  Everyone is entitled to the best defense, but not from me.  I can stand up and argue on behalf of most clients and most allegations, even find some mitigation or whatnot… but BB isn’t my client and I would refuse to represent him.  There is some misconduct I won’t defend, and desertion and aiding the enemy is one of them.  He put lives at risk, put the mission at risk, and put our nation at risk, and wasted millions of tax dollars. He’s a traitor in my view, one with indirect blood on his hands.  5 terrorists were freed in exchange for his release – those 5 terrorists likely killed Americans and are now free, probably plotting to kill more Americans.  I have the lowest opinion of BB a person can have, and it’s no surprise that on every public forum a person visits BB is among the most viscerally hated service members.

  25. anon2 says:

    Bales twice walked off his base without authority in a combat zone. Trial counsel declined to charge those and instead (rightly) focused on his major misconduct. Walking off the FOB is more common than people think and usually merits Art 15, if anything.

  26. Vulture says:

    Concerned Defender.  Bergdahl’s dad said something about consulting your conscience and making you place with like minded men?  I said something about that earlier but I wasn’t suggesting, well… Actually I did say something about the coincidental increase in lawyers leaving the service and episodes of scary clowns walking around.  I see things are looking up for you.  Merry Christmas.

  27. Well Endowed Clown says:

    Vulture, are you saying you sympathize with Bergdahl’s cause?

  28. Vulture says:

    I’ve never had to eat the ass out of a dead goat.  I can imagine that it might be quite tasty.

  29. Concerned Defender says:

    Apparently in Vulture’s world, folks shouldn’t be indicted or prosecuted and we all should just do whatever and whenever we please.  Oh, especially if their crimes didn’t work out as planned and they suffered some other consequence.  I guess future rapists who unintentionally get diseases from their victims of get their victims pregnant and have to pay child support shouldn’t be prosectued because they already paid a price??  Or if a murderer gets injured during the murder, it’s a wash?  Or maybe a bank robber crashes his getaway car and doesn’t make off with very much money, we should just look the other way…  
    Apparently cracker jack didn’t put a large enough disclaimer on the law degrees in the boxes.

  30. Lone Bear says:

    Just generally asking around similar cases usually get 2 years and a BCD.  He seems to have psychological problems which might make it worth less.  The Army also accepted some of the responsibility when they took a soldier with known mental health conditions who couldn’t even cut it in the Coast Guard.  The Coast Guard for Christ’s sake! It’s easy to put all the blame on the accused but this seems like a preventable problem if the Army exercised any good judgment when choosing who to admit.  The Army put him in a position to fail, they share some of the blame.

  31. stewie says:

    Lone Bear, that’s probably a fair starting point give or take and yes the psychological problems and the time spent confined by the Taliban and the conditions will be things that cut off from the sentence.  I can imagine either a shorter sentence with a kick, or a longer than expected sentence with no kick (expecting an admin discharge that preserves some benefits) as being two very possible outcomes.

  32. Duh Law says:

    Do we know for sure whether Bergdahl was treated poorly by the Taliban?  Isn’t it possible he suffered no ill effects from his captivity?  I’m not saying he was living it up, but maybe he got a long fairly well with his captors.  He was with them for a long time, after all.

  33. stewie says:

    Duh Law, for sure isn’t a legal standard I’m aware of, but we have pretty good evidence he was confined for five years, deprived of liberty and at best certainly was not “living it up.” He certainly doesn’t appear to have been free to go. I would think it fairly likely anyone under those conditions at best, would not come away with “no ill effects.”

  34. Joseph Wilkinson says:

    If you look at the documents on the “Bergdahl Docket” website — particularly the Article 32 and the 706 board, you see the following:
     
    – He did have some kind of leg injury from his time in captivity.  (He said it was from a “stress position” but we have only his word for that.)
     
    – He had a diagnosis of PTSD, though we don’t know just from what.  
     
    – He had a personality disorder, which apparently had not been diagnosed before.   (The specific personality disorder he had was nothing like “insanity”…the main symptom is “not forming close personal relationships with others.”   According to this about 3% of the population has it, with prevalence being higher in males.)  
     
    His only “mental issue” from the Coast Guard, from what I’ve read, was a diagnosis of “adjustment disorder”…which means very little except that he got stressed out in boot camp.   (And Coast Guard boot camp is supposed to be pretty harsh.)   His interview with General Dahl and the 32 testimony indicate that he did not have any similar problem when he came into the Army…I suspect because he was a little older.  
     
    None of this, in any shape, form, or fashion, makes the Army responsible when he writes an anti-American screed and walks off post into the hands of the enemy.  That’s why it’s important to look at actual diagnoses, and not just vague terms like “mental issues.”

  35. Duh Law says:

    Joseph Wilkinson, that is very interesting.  So, he spent years in captivity but came out no worse for the wear.  Sounds like he may have had it pretty easy while his buddies were worried about getting blown up (when they weren’t out looking for him and when they were).  Here’s another thing:  has anyone ever seen the series “Homeland”?  Perhaps that is an angle the prosecution will argue in attempting to get a lengthy prison sentence.

  36. stewie says:

    So, IOW, he has PTSD with no indication he had it from before captivity. He has some sort of leg injury tied to his captivity. He has other mental health issues which yes a personality disorder is a mental health issue.  He also had prior issues adjusting to military life. That doesn’t make the Army “responsible” generally speaking for what happened, particularly since the needs of war necessitated opening up to recruits we wouldn’t perhaps have ordinarily taken, and there are no good answers there. And no one would expect what he did ordinarily.
     
    But it certainly paints a more subtle picture of things then “he’s a bad guy who lived it up among the enemy” and it suggests he did in fact suffer some “ill effects” which are likely to be considered to at least some extent by the factfinder and certainly were considered by the 15-6 IO in his recs.

  37. Duh Law says:

    Stewie, what you say is certainly possible, but isn’t it also possible that the reason Bergdahl came out of lengthy captivity with a brutal regime virtually unscathed b/c he was sympathetic to the Taliban and they treated him accordingly?  What if he did, in fact, “turn” and now is a sleeper Taliban/terrorist agent biding his time like the red-haired guy in “Homeland”?  That scenario is reason enough for a lengthy prison sentence, no?

  38. Ganthet says:

    Virtually unscathed?  Here’s what the Washington Post reported last year: 

    “Army Sgt. Bowe Bergdahl was beaten with hoses and copper wire, starved and left without medical treatment despite severe diarrhea for 3 1/2 years while in captivity, according to a senior defense official who angrily described his treatment Friday.  Terrence Russell of the Pentagon’s Joint Personnel Recovery Agency choked up while describing how insurgents with the Haqqani Network treated Bergdahl, who was taken after walking away alone from his unit’s outpost in Paktika province, Afghanistan, in June 2009. He spoke during a preliminary legal hearing for Bergdahl, who faces charges of desertion and misbehavior before the enemy.  Even the women and children who were told to feed Bergdahl and take him to the bathroom mistreated him, with one child hitting him repeatedly with a chain, Russell said. They tripped him, hit him with chains and spat in his food, he added.”

    Bergdahl provided more details during the “Serial” interview:

    After escaping into the Pakistani wilderness and being recaptured, Army Sgt. Bowe Bergdahl’s treatment in captivity took a turn for the worse: He was placed in a cage, moved repeatedly and tortured by a man who sliced his chest repeatedly with a razor blade, he said in an interview published Thursday.  Bergdahl’s comments appeared in the newest episode of the podcast “Serial.” The razor cuts were done slowly, to inflict maximum pain, he said.  “Don’t think one or two cuts at a time. Think, like probably, 60 to 70 cuts at a time,” he said. “And they did it slowly.”

  39. stewie says:

    Yes, Duh Law, we should obviously base sentences on what is “possible.”  I mean if you saw it on a pay cable tv show…

  40. Vulture says:

    No Concerned Defender.  In my world, the same one you live on, no one is seriously considering the idea that POTUS is going to give a pardon to BB.  That he would ask when at the same time he is asserting that the President’s appointee, confirmed by the Senate, acting in his capacity as the FORSCOM Commander committed UCI is bummed.  When guys that are serving LWOP for possession of some weed can’t get a pardon it is buggered.  When you are in a trial with the same judge that didn’t give the death penalty to Robert Bales, it is…  Fuck it, believe what you want.

  41. Duh Law says:

    Stewie, no need for your smart aleck attitude.  I’m trying to discuss an important topic.  It seems that you disagree with the concept of future dangerousness as a legitimate sentencing factor.  I think it’s pretty well accepted, though.  And let’s not forget, all the info on Bergdahl’s captivity is coming from him…I’d say he has a motive to lie about his treatment…

  42. Duh Law says:

    Vulture, judges can issue a death sentence?  I thought that could only be done by panels.

  43. Matt says:

    Vulture, help me out here.  Are you suggesting that the military judge in Bales should have ignored the plea agreement between the Government and Defense, ignored that there was no panel trial and therefore no panel sentence of death, and gone ahead and illegally sentenced him to death?  Is that what you are saying?

  44. MilJus Ex-Pert (now using Head and Shoulders) says:

    Vulture, judges can’t issue death sentences.

  45. Concerned Defender says:

    Yup, more cracker jack lawyering by Vulture I see… 
    In the real world, it’s not very strong mitigation when the rapist is injured during the commission of his rape or the bank robber is injured in the commission of his bank robbery.  Likewise when someone writes an anti-American manifesto and then deserts his combat outpost (if you believe him he was going to alert leadership at another base, on foot, rather than sending an email), in an area of high enemy traffic and good likelihood of capture, then foreseeably gets captured and held, that’s not “mitigation” in my view.  When you commit crimes, you should own the likely negative outcome.  You certainly shouldn’t get sympathy for it when it goes badly. 
    As for “LWOP” for “possessing marijuana” that’s not likely.  I’m unaware of any cases which support your position and having defended a lot of drug cases, a mere possession case results in less-than-felony level results.  Generally an administrative discharge or a SPCM.
    As for a pardon, you can choose to believe what you want, but you’re not entitled to your own fact pattern.  Obama has commuted the sentences (similar to a pardon in the respect that he is exonerating them in some fashion) for 744 criminals; more criminals already than any POTUS in history, according to USA Today (and pardons generally come on the last day in office).  http://www.usatoday.com/story/news/politics/2016/10/06/obama-commutes-xx-more-sentences/91685468/
    This attitude demonstrates a strong hint into the views of Mr. Obama about the Rule of Law. Given his admin did the (unwise/illegal) trade without Congressional consent for BB, then touted his service as “honorable” and other praises, and held that absurd Rose Garden conference, the tea leaves indicate a pardon in BB’s future.  I can hope that I am wrong, but we’ll see.  
    As for BB’s mental or physical issues, or the Army being at fault, nonsense.  That’s a slippery slope to traverse and we could then hold the Army responsible for sending Soldiers to combat zones, etc.  The concept of Ferres indemnifies the military for culpability when acting reasonably, and BB applied for admission and met the standards at the time.  I don’t see the military at all responsible in any fashion for anything that happened; conversely the military spent a fortune trying to recover him and ultimately the government gave over a ransom to get him back when he could have otherwise languished or died in some cave. 
    As for “similar results” there are few cases to draw from.  However, let’s look at 2LT Franks as a contemporary example for comparison.  2LT Franks deserted his unit in 2009 pre-deployment to OEF.  He was absent for 5 years, almost the same timeframe of our hero BB.  There are stark differences however.  Franks voluntarily turned himself in, and didn’t require a costly rescue or apprehension.  BB wrote some pretty egregious anti-American manifesto, and his charges are far worse.  Also we didn’t spent millions of dollars on rescue efforts, endanger countless Soldiers and extend their deployments to find Franks.  Franks didn’t interfere with wide-scale OEF operations.  And we didn’t pay a heavy ransom to get Franks.  If you buy into the mitigation, BB suffered injury and deprivations of liberty.  Anyway, 2LT Franks was dismissed from the military and earned a 4 year confinement.  On a balancing act, I believe BB should receive a much more harsh sentence.  https://www.armytimes.com/story/military/crime/2014/12/16/franks-army-officer-desertion/20480095/

    A West Point-educated American officer who served in the French Foreign Legion after deserting his U.S. Army unit before its deployment to Afghanistan has been sentenced to four years in prison.
     
    Second Lt. Lawrence J. Franks Jr., 28, was also dismissed from the Army during sentencing Monday at Fort Drum, home to the 10th Mountain Division, The New York Times reported. He was found guilty of conduct unbecoming of an officer and desertion with the intention to shirk duty, specifically deployment.

     
    Regarding mental culpability or mitigation for mental issues:  The standard for such degree of mental issues (RCM 706) to exonerate or otherwise not hold BB responsible is nowhere close to having been met.  Did he understand the nature of his actions at the time, and now?  Clearly.  Can he understand the proceedings and participate in his defense?  Yes.  End of analysis.  Bummer he has some nightmares, but so to plenty of Service Members facing Court Martial and that’s not a defense to misconduct.  Here’s a nutshell on RCM 706 cases.  http://www.armfor.uscourts.gov/newcaaf/digest/IIIB13.htm

  46. stewie says:

    Duh Law, sorry, it was the only response that seemed worthy of an argument that basically says “I don’t have any actual evidence of this, but what if he’s a sleeper agent like in that tv show I saw once? Couldn’t the court consider that possibility in sentencing?”
     
    Future dangerousness is based on actual facts, not possible “scenarios.”  IF there is evidence that he actually aided and abetted the enemy, that he was “turned” then maybe that is a consideration for a panel.  But given that he doesn’t appear to have been charged in such a way as to remotely suggest that, and there is no evidence I’m tracking to suggest that, then no it’s not a “scenario” for consideration.
     
    Know how I know that? Because the GOV didn’t charge him with aiding the enemy. They could have. If they had any of that evidence they would have. They didn’t.
     
    You basically operate from the presumption of, just assume the reverse/worst of everything Bergdahl says, and operate as if that’s a likely reality.
     
    I mean future dangerousness is an important topic, but it ain’t what you are discussing.

  47. Duh Law says:

    Stewie, there are facts to support future dangerousness here, but your apparent sympathy for Bergdahl clouds your view.  Those facts include an anti-American manifesto written by BB, a voluntary absenting in the middle of indian country, a lengthy confinement with dirtbag extremist muslim POS’s, BB’s remarkably good condition upon release for such harsh treatment (as described by him), and his apparent desire to avoid jail by fighting these charges…these are the facts and they cannot be disputed.  It is obvious by your sympathy for BB and your disrespectful attitude toward some folks here that you have never served in a forward deployed environment where actions such as BB’s are about as bad as it gets.

  48. Vulture says:

    The prosecution is going to get together before the trial and get psyched up listening to Rammsteinn.  Really really loud.

  49. Ganthet says:

    Duh Law, besides the ridiculousness of describing his last (admittedly angry and disillusioned) email to his dad as “an anti-American manifesto,” did you seriously just try and argue that his being a prisoner of war is a factor that should be used to deem Bergdahl at risk of future criminality?  And you seem to be using muslim as another insulting adjective since you lumped it between dirtbag, extremist, and POS.  But most importantly, you lost all hope of being taken seriously when Bergdahl’s constitutional right to plead not guilty and have the Government prove their case against him be twisted and used as another factor supporting “future dangerousness.”  Now that is some anti-American sentiment right there.

  50. Duh Law says:

    Ganthet, extremist and muslim should be read together.  An extremist muslim is different than a muslim.  I have no quarrel with muslims.  And, yes, extremist muslim terrorists are dirtbags and POS’s.  And let’s not grant BB POW status so freely.  Maybe he is by a technical definition.  But he’s no John McCain, if you get my drift.  He walked off base full of anti-American sentiment and anger.  We don’t know if he was actually captured by the dirtbags or if he sought them out.  And, finally, in the context of future dangerousness, my point about BB not pleading guilty is valid.  It’s hard to carry out a possible sleeper agent terrorist plot when you’re locked up in Leavenworth.

  51. stewie says:

    I’m now convinced Duh Law is a parody account.

  52. DCGoneGalt says:

    Wow, I took a day off and . . . That escalated quickly.
     
    Moments in History:  I’m willing to bet that’s the first reference to eating a dead goat’s ass this blog has ever seen.

  53. stewie says:

    Well…at least it was dead DCGG.
     
    #itsthelittlethings

  54. WolfHound6 says:

    Let’s get back on track if possible.  I have a question:  what is the current consensus on whether other servicemembers were injured or killed in their efforts to locate BB?  I think the answer to that question could have a major impact on the outcome of this case.

  55. DCGoneGalt says:

    The only “consensus” that will matter is what’s presented in court.  

  56. WolfHound6 says:

    DC, if that’s true, then it seems we could get a false picture of what really happened.  I do believe that the military (and para-military) use some super secret assets for missions such as this.  The nondisclosure of relevant deaths/injuries could be to protect those units and their missions.  I’m just wondering if that is what is going on here.  And I also wonder if there are deaths/injuries that occurred in conventional units that are not being attributed to BB’s search but should be.  Again, a very important issue in my mind.  Almost as important as the fact that BB was released in exchange for five murderous thugs who are probably doing ill to Americans or their interests right this minute.  Bad, bad stuff.

  57. Yes, I'm Liberal...Deal with it! says:

    Bowe Bergdahl was trying to do good, and now he’s being treated horribly by his own country.  After he was treated badly by his local Taliban hosts in Afghanistan.  He should be given his POW medal, all his backpay, and honorably discharged so he can receive the treatment he needs.

  58. DCGoneGalt says:

    Some of the evidence you mention may come in to Bergdahl’s case.  At this point, I don’t have the time to find out what the truth is nor do I know if it is too attenuated for sentencing.  However, if the evidence is classified the Government will have a choice to make.  In a similar note on the consequences of taking a case to court when sentencing involves classified evidence, some may recall the case of an AF O-6 JAG who had been practicing in the AF for years after being disbarred by his state and received no punishment in a court-martial because of classified evidence he was prevented from introducing in sentencing. 
    Col Murphy

  59. Concerned Defender says:

    @ Wolfhound6:  Prosecutor’s in September 2016 filed a motion to provide evidence of two Soldiers who were injured searching for BB.  http://www.military.com/daily-news/2016/09/08/prosecutors-cite-two-soldiers-injuries-bergdahl-arguments.html
    http://www.military.com/daily-news/2016/11/15/judge-questions-injury-evidence-bergdahl-case.html

    Prosecutors say that Mark Allen, then a National Guard sergeant first class, was part of a search mission about a week after Bergdahl disappeared from his post. Allen was shot in the head on July 8, 2009, and suffered traumatic brain injuries that leave him dependent on a wheelchair and unable to communicate, prosecutors say.
    The filing also says that Spc. Jonathan Morita suffered broken bones and other hand and arm injuries when a rocket propelled grenade was fired at him. The RPG didn’t explode, and Morita survived.
    Prosecutors have said evidence of injuries will help them show that Bergdahl endangered his comrades, one of the elements of the misbehavior before the enemy charge.
    “Individuals were in fact harmed, and that’s the best evidence of endangerment,” said Capt. Eileen Whipple, a prosecutor. Leaving out evidence of the injuries “leaves us with a gap in how dangerous these missions were.”
    The judge posed tough questions for the prosecutors about such evidence.
    “You’re not entitled to use that evidence if it’s unfairly prejudicial,” Nance told them. “This trial becomes a trial about that operation, that mission, and not a trial about what’s on the charge sheet.”
    Nance suggested the “horrific nature” of the one soldier’s head wound might provoke jurors to decide based on emotion that “because Sgt. Allen was so horrifically injured, he’s guilty.”
    “That’s an unfair conclusion,” Nance added.
     

    I was previously under the impression that up to 6 Soldiers died looking for him, and that there was an SF Soldier who was also injured.  Apparently the evidence of that is too tenuous for the prosecution to argue?  I don’t know. 
    The prosecution is going to have to prove causation – and I think they can.  Causation is the natural and probable outcome from the original actions.  E.g. I negligently drive a  car on a pedestrian sidewalk, and hit a person and injure him.  I might not have intended that the victim be injured, but my actions surely 1) were foreseeable that someone would get injured and 2) contributed the injury.  It matters not that the victim was engaged in unrelated actions of good or evil or whatever.  Now lets change the fact pattern:  The victim sees the car coming, and jumps out of the way right into traffic and a drunk driver, injuring him.  I am still liable since I started the whole chain of events, provided the events were linked and forseeable.  For more about causation read the classic case Palsgraft v. Long Island.  http://www.casebriefs.com/blog/law/torts/torts-keyed-to-dobbs/negligence-the-scope-of-risk-or-proximate-cause-requirement/palsgraf-v-long-island-r-co/
    In the BB case, it’s not only foreseeable but it’s SOP that the military send out infinite search teams to find MISCAPS.  Everyone knows this.  When he walked off the compound, there were limited but likely things that would happen.  He would arrive at his destination, return to base, or be captured.  In the event #3 happened, then Soldiers would raise the alarms to the highest levels, and significant search/rescue teams scrambled.  Soldiers would abandon other missions, and take unnecessary risks engaging locals, driving on IED laden roads, flying over hostile territory, etc. looking for him.  It’s not only foreseeable but in fact LIKELY someone is going to be injured or killed taking these unnecessary risks in hostile terrain (vehicle rollovers, drownings, helo crash, shootings, IED strikes, etc.).  Causation is simple.  If someone testifies that the primary reason for him to put on his kit and mount up on a mission was to find BB, and they acted reasonably in doing so, then there is no break in the causation chain – bad actors (the Taliban) were baked into the causation foreseeability cake as part of the risk equation.
     
     

  60. Litig8r says:

    Concerned Defender, slow down a bit…you’re running circles around these guys and they don’t even know it.  As for Bergdahl, I agree there is a distinct possibility that he’s a sleeper agent.

  61. The Happy Ponderer says:

    The Bergdahl case is certainly generating a lot of buzz.  It is an important case that will likely result in a court-martial.  Mr. Bergdahl may actually decide to plead guilty to avoid a trial if he gets a deal good enough to make it worth his while.  He could receive a lengthy sentence or he could get fairly light punishment.  We shall see.

  62. Shooter McLovin says:

    Some very interesting perspectives.  Very interesting, indeed…

  63. Vulture says:

    CD and clowns.  Bales was given a chance to go way outside the normal inquiry in his statements, perhaps leaving his fate to a brighter day.  Go look again on how that plea deal came about.  That too was a highly contentious court martial that could not have gotten the result it did without the MJ’s impact.

  64. JellyBalls says:

    Vulture, can you give more details on the Bales outcome?  I have to admit I know very little about how and why that one turned out the way it did.  Thanks.

  65. Concerned Defender says:

    @ Vulture – I’ve not written the world Bales in probably years, and certainly didn’t bring him into this conversation.  Once again, showing how inept and off topic your comments get with your personal attacks.  What does Bales have to do with this case, since it’s entirely different.  It wasn’t anywhere near the level nor type of contention of this BB case.  Nobody from the administration rescued Bales nor called him a hero, nor was there debate about a pardon, etc.  The evidence of both of their criminality is plainly obvious, but in BB’s case some folks feel sympathy or refuse to see it for political reasons whereas for Bales it was painfully obvious to everyone… everything but the murders themselves was captured on FLIR.  Both men are guilty, it’s just a matter of some folks setting aside their love of the Obama administration and hate for war to accept his culpability and recognize he’s not a war hero, he’s a coward deserter.

  66. stewie says:

    That’s a whole lot of crazy in one paragraph!

  67. Stephen Wilson says:

    There seem to be at least four schools of thought in the Bergdahl case:
     Shoot him and then hold a show trial
     Hold a show trial and then shoot him (or at least lock him up forever)
     Hold a fair trial and determine the results based on presented evidence
     He has suffered enough; no trial is necessary 
     
    While I am trying to keep an open mind on the whole thing since I don’t know all of the facts, I see no indication that anyone is prepared to change their own opinion or able to change anyone else’s. 

  68. Vulture says:

    Clowncerned Defender.  When I choose to go personnel in my attacks you will certainly know it.   When you punctuate a sentence with a smiley emoticon ‘ :) ‘ one has to think you are open to the idea of being tongue in cheek somewhat.  That is plainly not the case.

  69. anon says:

    Folks,
    Realize I’m probably exacerbating the off-topic remarks (post concerned writ denial), but military.com reported that COL Nance has excluded evidence of injured/wounded in relation to search for Bergdahl . . . I presume this ruling was for all stages of trial.  Personally, I thought there was an interesting issue about how attenuated the evidence could be under RCM 1001(b) based on facts reported for Bergdahl.  Appears COL Nance took the smart and pretty-much insulated from appellate review approach and denied under 403 balancing test.  For folks not happy with ruling, consider cost/benefit analysis, admission of this evidence would have been problematic for appellate review if Bergdahl is convicted, removes some of the questions concerning access to classified information, and limits the possibility of a sentence rehearing a 5 years from now. 
    http://www.military.com/daily-news/2016/12/18/judge-bars-bergdahl-prosecutors-using-wounds-trial.html

  70. stewie says:

    I’m actually ok with either option 3 or 4 Stephen Wilson.  I don’t have any reason to disbelieve his conditions, particularly since the GOV, who is in the best position to know, doesn’t seem to dispute it all that much either. I don’t have any reason to believe he is a traitor considering that the GOV, again, in the best position to know, didn’t charge him like one.  What I do have reason to believe is that he’s a fool who did a fool thing which led him to five years of captivity by the Taliban.  I’d be just as fine with him getting an OTH discharge with a chapter as a BCD with little to no jail time given the five years in captivity, either wipes away his service and stamps a negative characterization on it.
     
    And yes Anon, given the ruling by COL Nance, which I agree is the smart move from a protect the record analysis, it’s going to be hard for the GOV to get a large sentence.  He’ll have a fair amount of mitigation, and the GOV won’t have a ton of aggravation.

  71. DCGoneGalt says:

    stewie:  I see a reasonable punishment as BCD/DD if proven to be a traitorous fool and a reprimand with no further punishment if proven to merely be a fool.  The ruling doesn’t change my view on punishment much.

  72. FormerOperator says:

    Yeah, no aggravation at all:  http://jimmyhatch.com/.

  73. stewie says:

    I think he’s just a fool personally but there isn’t a ton of difference between a BCD and an OTH. I’m of the opinion that a lot of time, effort and whatnot would have been saved just chaptering him out with an OTH.

  74. SharpenTheBlade says:

    Stewie, I appreciate your posts and I think you get it right more often than not, but I think you are off base on this one.  I know JAGs talk a lot about being warfighters too in terms of training and what not…I think the Army even says of its JAGs, Soldiers First, Lawyers Always or some such.  Bergdahl’s great sin is twofold and both conceptual and concrete.  One, his walking off base is antithetical to the brotherhood that is so key to the cohesion of military units.  Knowing your brother has your back is so important.  And, two, servicemembers were at least put in harms way to look for this nimrod, and frankly, it seems likely that some were wounded or perhaps even killed.  I don’t know for sure what kind of treatment those Godless heathens heaped upon BB in captivity, but I really don’t give a shit, either.  Play stupid games, win stupid prizes…you make your own bed…whatever, pick your saying.  Anyone who has sympathy for this jackass is so far removed from warfighting that it should cause them to pause and think about what value they are adding to the mission at this point.  Send a message to the guys who stop bullets that we value their sacrifices…send BB away for a long, long time. 

  75. stewie says:

    SharpentheBlade, well in the courtroom, there won’t be any evidence. And outside the courtroom, there’s conflicting evidence on whether folks were injured while looking for him. I don’t think he’s a great guy, I do think he has mental issues that led him to do something really foolish. I don’t think he thought through the ramifications with the intent on hurting anyone else or affecting any sort of brotherhood.
     
    Intent matters to me. And yes, I think it does matter what treatment he received under the Taliban. The lighter it is, the less “credit” he gets for it, the harsher it is, the more “credit” he gets for it. The onus will be on the defense to prove that part. At best, he’s already served five years of confinement.
     
    You talk of brotherhood and yet we see so many PTSD Soldiers tossed to the side the moment they get back to garrison and don’t act quite right. You talk of brotherhood and yet I see Soldiers sexually assaulting other Soldiers, or hazing, or bullying. It’s a nice ideal, and sometimes it’s actually a real thing, but often, it’s not…or it’s only used to inspire/motivate/get folks to do something they don’t want to do.
     
    I’ve served in combat arms units as a Soldier before I became an attorney, so I am not completely removed from the ideals you talk about, I just think they are more ideals than practice way too often.

  76. SharpenTheBlade says:

    Stewie, leaders who don’t take care of servicemembers, including those with PTSD, are dirtbags, as are servicemembers who harm other servicemembers.  They are the vast minority, though.  Talk to some of the operators who were tasked with locating dear Mr. Bergdahl.  They live and breathe the brotherhood I speak of.  And they would be pissed at Bergdahl’s actions even if some of their brothers didn’t get wounded or killed looking for him…

  77. stewie says:

    Well, I am sure none of them would place him on their Christmas Card list. I’m sure they are pissed. But we don’t judge punishments on whether Soldiers would be pissed or disgusted. We respect their feelings, but we assess guilt and punishment with a different metric, which I think is a good thing.

  78. stewie says:

    And no, I don’t think leaders who don’t take care of folks with PTSD are in the vast minority. Particularly when those folks cause some sort of problem.  In the draw-down Army, there’s no time for them.

  79. Concerned Defender says:

    stewie says:
    December 20, 2016 at 4:04 PM  
     

    Well, I am sure none of them would place him on their Christmas Card list. I’m sure they are pissed. But we don’t judge punishments on whether Soldiers would be pissed or disgusted. We respect their feelings, but we assess guilt and punishment with a different metric, which I think is a good thing.

     
    Incorrect.  Straight from the Benchbook there are 5 sentencing factors and it’s easy to see that 4 of them relate to being “pissed” or “disgusted.” : General Deterrence, Punishment, Protecting Society, and Preservation of Good Order and Discipline (the 5th being Specific Deterrence for the offender – e.g. being taught a lesson).  So I would say that it’s clear that sentencing is HEAVILY influenced at how “pissed” and “disgusted” people are, overall, and while those are technical legal terms, they are expressed in the 4 out of 5 factors in some fashion or another.  

  80. stewie says:

    Always enjoy your…novel…interpretations CD.