A reader forwarded me this motion to dismiss filed yesterday by the defense in the Bergdahl case. The basis for the motion is a comment President Trump made about the case during a press conference on Monday:

At 1:47 p.m. on 16 October 2017, President Trump held a joint press conference in the Rose Garden with Senate Majority Leader Mitch McConnell. According to the official transcript, the following colloquy occurred between the President and a member of the press corps:

Q Mr. President, Ronica Cleary with Fox 5.


Q Do you believe that your comments in any way affected Bowe Bergdahl’s ability to receive a fair trial? And can you respond to his attorney’s claims that —

THE PRESIDENT: Well, I can’t comment on Bowe Bergdahl because he’s — as you know, they’re — I guess he’s doing something today, as we know. And he’s also — they’re setting up sentencing, so I’m not going to comment on him. But I think people have heard my comments in the past.

(Emphasis added.)

Mot. at 2. The motion then argues that:

President Trump stands at the pinnacle of an unbroken chain of command that includes key participants in the remaining critical steps of the case. Among these are the Military Judge, the staff judge advocate, the general court-martial convening authority, and the judges of the Court of Criminal Appeals.

Mot. at 3.

Why this justifies “dismiss[ing] the charges and specifications,” Mot. at 1, after Bergdahl pleaded guilty, is anybody’s guess.

Presumably, however, Bergdahl’s defense team will voir dire the military judge prior to sentencing.

The motion also states:

The defense offers the transcript and a DVD of the colloquy reproduced above in support of the motion. We assume the government will not contest their authenticity and accuracy. If that is incorrect, we will ask that President Trump be called to testify telephonically.

Mot. at 3 (emphasis added). The prospect of calling the President to testify by telephone about a statement that was recorded, broadcast (watch it here), and witnessed by a great many people (any of whom could testify that it was said) is almost as ridiculous as dismissal would be.

Updated to add: I previously addressed the President’s comments about the Bergdahl case in this post, in which I wrote:

Dismissal is a remedy for unlawful command influence, but it’s the most extreme remedy and it means that Bergdahl could never receive a fair trial in the wake of Trump’s pre-election comments. Getting a fair trial may be harder than it would have been before the comments – or it could be easier if the court-martial members think the comments were inappropriate and hold them against the prosecution – but there’s no evidence that a fair trial is impossible.

In that post I also observed that:

There’s absolutely no evidence that the military judge (Colonel Jeffrey Nance) or the multiple appellate military judges who have considered this issue are the slightest bit afraid to correct injustice when they see it. Rather – as I noted here in the context of comments by Senator McCain that Bergdahl also tried to use to win a dismissal – the reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army trial and appellate military judges in the face of any kind of improper influence.

54 Responses to “Having pleaded guilty, Bergdahl again moves for dismissal”

  1. Former says:

    Must say thanks for pointing out Mr. Burns reaction to the German threat!  Motion is wasted credibility.

  2. Sigmund Fraud says:

    Is this designed to have the MJ “check himself” and render a lighter sentence than he otherwise might just to quell any perception that he’s been influenced by POTUS?  B/c other than that, I see no strategic value to this motion…

  3. tinfoilwars says:

    Since this case would never have seen the inside of a courtroom if President Obama had not had a Rose Garden ceremony, this motion is the absolute right thing to do. The defense simply HAS TO file it. 
    Bowe Bergdahl is a political football. If he hadn’t been captured he would have received an Article 15 and a separation. He was mentally unfit for Coast Guard basic training, and he was sent to the frontline of Afghanistan as a Soldier in Airborne unit. He’s, in part, the sad result of constant deployments and an all-volunteer force. 
    It was the dark side of veteran-forums, nut job internet conspiracy theories, and political hatred for President Obama that resulted in this court-martial that has now stretched 3.5 years after his return.
    Google Alex Jones (and other similar websites) and Bowe Bergdahl. Match the dates of those articles to the then-candidate’s statements. Tinfoil hat “WHAT THEY AREN’T TELLING YOU!” stuff. That’s the toxic political stew this case has been boiling in. The same dark elements of the internet that played a role in the President’s electoral success.  
    As CINC, President Trump reminded everyone of what he said. He was clearly briefed on how to answer the question, but he decided to remind everyone of what he thinks. 
    In this age of political polarization, the fact that his comments have made it impossible for Bergdahl to receive a fair sentence should be acknowledged as our uncomfortable reality.
    The politicization of Soldiers, their captures and deaths, by the darker aspects of American politics needs to end. Congress created UCI for a reason: decades of experience with the military made it clear a protection was needed. These comments will impact the sentence and the public perception of our system. I hope the judge does something to protect the system.

  4. k fischer says:

    Not so fast, counsel.
    I’d really like to know POTUS’s intent in making the statement “But, I think people have heard my comments in the past.”  Because it sounds like he is reiterating his position as a candidate and adopting the same position as POTUS.  That’s how I read that statement.  And, did he intend to ratify as POTUS, his previous statements that he made when he was merely a candidate. 
    Because wasn’t that what the MJ’s ruling was based on, i.e. he wasn’t a candidate, so no UCI?  Certainly, there is an appearance of UCI after this statement.  So, now the question is whether it will not affect the proceedings BARD.  The MJ will simply rule that it won’t.  But, what if it did affect the MJ?  Would the remedy be to recuse himself, and appoint an MJ who says the CinC’s statements have no affect on his decisions as a MJ?
    And, why can’t 45 just not talk about it?  His answer indicates that he understands that he is not supposed to talk about it because he is CinC.  I mean, 44 stopped his UCI after motions were filed regarding his statements about sexual assault.

  5. an old DC says:

    I doubt anyone here, and certainly not Judge Nance, cares what the president thinks is an appropriate sentence. Yet the president’s remarks were UCI improper and that needs to be said and addressed. So why not fashion some sentencing credit? Couldn’t Judge Nance do that?

  6. Zachary D Spilman says:

    The thing is, k fischer, that if the President wanted to improperly influence Bergdahl’s court-martial, he wouldn’t do it with some vague, off-hand remark during a press conference. In fact, he wouldn’t do it in public at all. 

    Now some people might think the President’s remark is some kind of coded message. A dog whistle. I think that’s nonsense for a lot of reasons, mostly presented in psychiatrist/blogger Scott Alexander’s post: Against Dog Whisle-ism

    Ultimately, however, now that Bergdahl pleaded guilty, the argument that the President’s remarks make a fair trial impossible, and so the charges should be dismissed, is laughably bad.

  7. Saul says:

    Agreed with tin foil.  Unless they wanted an appeal for IAC on a plea…  They had to file after the POTUS affirmed his opinion. 
    “Why can’t 45 not talk about it”?  Really?  I won’t insult the office here, so I’ll stop typing.

  8. Brian Bouffard says:

    And, why can’t 45 just not talk about it?

    Because he consistently demonstrates that he is a boob.

    Ultimately, however, now that Bergdahl pleaded guilty, the argument that the President’s remarks make a fair trial impossible, and so the charges should be dismissed, is laughably bad.

    UCI can affect the sentencing portion of the trial, which has not yet occurred.

  9. Zachary D Spilman says:

    You’re absolutely right, Brian Bouffard, that UCI can affect sentencing. But dismissal isn’t a remedy for that. 

  10. Crunch Enhancer says:

    Zach, maybe not, but “no punishment” can certainly be a remedy for UCI at sentencing…you are being awfully dismissive of some pretty bright attorneys on the defense side.

  11. Zachary D Spilman says:

    The motion asks for dismissal.

  12. Brian Bouffard says:

    The motion asks for dismissal.

    True, but dismissal remains a possible remedy for UCI.  What legal impediment would there be to dismissing a charge to which guilty pleas have been accepted, if the judge found the UCI to be egregious enough?  “I reconsider my acceptance of your pleas of guilty, they are no longer accepted by the court, and I order dismissal of this case with prejudice.”  In any event, seems wise to ask for the maximum possible so as not to limit the discretion of the military judge.

  13. John Coktoasten says:

    Bingo, Brian.  Not sure what Zach is talking about.  Maybe he has some authority he can refer us to?

  14. Zachary D Spilman says:

    I’ve never said dismissal isn’t an available remedy. What I’ve said – and continue to say – is that dismissal is totally unwarranted in this case. Especially now that Bergdahl pleaded guilty.

  15. PMagnet says:

    Ummm…Zach…yeah, you did.  See below. 
    ZS:  “You’re absolutely right, Brian Bouffard, that UCI can affect sentencing. But dismissal isn’t a remedy for that.”

  16. stewie says:

    1. The idea proposed in that the article you cite ZS that people don’t speak in dog-whistles (with the argument that a man who has admitted to sexual assault and has repeatedly and continuously exhibited clear misogyny didn’t really openly express misogyny because he wrote two paragraphs in   book once that said something nice about women) is pretty silly.
    2. Having said that, Trump generally doesn’t use dog whistles, he uses a bull horn instead. When he doesn’t use a bull horn, he uses the now-patented Trumpism of combining being on both sides of an issue (I can’t comment…(but you know what I think))…with, “many people are saying.”  Hey, I’m not saying it, it’s those “many people.”
    He absolutely just adopted his statements as a candidate and this is motion that is not frivolous. Now will they get a dismissal? Nope, but that does not render the motion frivolous because it signals the level of defense concern and frees the MJ to craft any remedy just short of dismissal. 

  17. Brian Bouffard says:

    Zach, I must have misunderstood you – I thought you were arguing dismissal isn’t available after a guilty plea, not simply that you believe these facts don’t merit dismissal.  My bad.

  18. Zachary D Spilman says:

    There’s a difference between whether a remedy (dismissal) is available and whether it’s appropriate.

  19. A True Defender says:

    Zachary, perhaps you should have made that point earlier then.  B/c earlier, you clearly said dismissal wasn’t available as a remedy for UCI affecting sentencing.

  20. Brian Bouffard says:

    Zachary, perhaps you should have made that point earlier then.  B/c earlier, you clearly said dismissal wasn’t available as a remedy for UCI affecting sentencing.


  21. FlatOut says:

    Zachary D Spilman says:
    October 18, 2017 at 1:18 PM  

    You’re absolutely right, Brian Bouffard, that UCI can affect sentencing. But dismissal isn’t a remedy for that. 

  22. Philip D. Cave says:

    Sgt B., “this Court sentences you to X.  But for your years and experiences in captivity, I would have sentenced you to X.”

  23. stewie says:

    DC ask for dismissal all of the time when it isn’t appropriate or has a snowball’s chance in you know where of succeeding.
    Why is this all of a sudden the time when it’s problematic?

  24. Vulture says:

    I don’t understand where this conversation is going. 
    Zach.  Earlier I said that when I speak to dogs I do it in German in the context of what terms are appropriate.  Now we are talking about dog whistles and being afraid of the Germans.  It’s not our place to accommodate the 6 word vocabulary of the dogs of war when they decide that some of them are more equal than others.  The sentinel of UCI is the only protection that the military courts have to ensure that never happens.  The President did his barking and howling and these motions are an appropriate course to take.
    There is another saying: Those who can’t, teach.  It’s not a statement, it is a command.  From how these events have played out in the Media, if they are getting it wrong, someone needs to explain it to them.  UCI is never laughable, that is from my heart.  They must understand that, people have to understand that, it is a mandamus.  I would charge you with being a good steward of the word “Institute,” scholar, and carry that to them.

  25. John O'Connor says:

    Let’s say in some magical unicorn world the MJ is truly affected by POTUS’s statements.  How in the world does he give sentencing relief?  If he is aware enough to realize his thinking on sentencing has been affected, as soon as he quantifies relief, isn’t that the same as saying I’m not affected because I know what I would have done on sentencing if POTUS had never said anything?   

  26. stewie says:

    J’OC he does it to protect the perception of the process.
    So that neutral observers from outside and Soldiers from inside look in and say, nope, no UCI here.

  27. Cheap Seats says:

    This could get interesting.  Let’s assume for a moment that the MJ finds that POTUS has now adopted his candidate statements.  Let’s assume for a moment the MJ finds that POTUS can actually commit UCI (as he is not subject to the Code).  Let’s assume that the statements raise apparent UCI.  The Government now has some work to do.  What’s worse, if they do not, the MJ gets to craft a remedy.  Perhaps he rules that Confinement over 1 year and a punitive discharge are off the table.  The Government better be ready to file a Writ of Prohibition and a Request for Stay, because that ruling wouldn’t be appealable under Article 62.  The MJ then proceeds to sentencing.  To make matters worse, the appellate court could not hear the appeal until after the CA approves a sentence.  And once the sentence is approved, the appellate court could order a rehearing, but no future sentence could be approved that is more severe than the first.  The MJ can really put the Government in a pickle if he decides to make our ass-umptions above.

  28. k fischer says:

    What Stewie said, with an unstated ancillary benefit of sending the message that POTUS should not be commenting on the specific sentence of a class of offenses or a specific accused.
    I think if more MJ’s would have taken a DD for Article 120 offenses off the table after 44 made his statement to the press, then maybe those who advise 45 would tell 45 that he is going to screw up sentencing for BB and be able to provide a real world example. But, that assumes 45 would (a) actually listen to someone advising him who knows more about the subject than he does, and (b) be capable of keeping his mouth shut when asked a question about BB who is to 45 what Wilkerson was to McCaskill and Gillibrand.

  29. k fischer says:

    Cheap Seats, 
    I reread Judge Nance’s opinion and he appears to believe that the President cannot commit UCI.  See Page 5, fn 4
    I don’t think his position would change even now if there were members.  And now that it is a MJ alone sentencing case, he will subject himself to voire dire and rule that he has not been influenced one iota by POTUS’s recent statement, even if POTUS could commit UCI.

  30. Anon says:

    Though the POTUS is not subject to the Code himself, he’s still a CA and could commit UCI.

  31. Sir Lance-a-lot says:

    This is obviously now a clear case of UCI.  Dismissal is most certainly available as a remedy.

  32. stewie says:

    I read that as Judge Nance saying the President cannot commit actual UCI, but he then goes on to discuss apparent UCI.
    Article 88 prevents the joke I would state about your (a) in the prior comment, which is too bad, because it was a good one.

  33. JC89 says:

    I could be wrong, but I don’t remember much concern/discussion about UCI when the CinC had his press conference in the Rose Garden or when members of his administration categorized BB service as ‘Honorable’. I’m sure that this had no effect on the IO who as I understand didn’t even interview members of his unit.
    How much discussion has been had on the testimony of the PR personnel? Maybe more then I think. But, they certainty don’t have first hand knowledge. So, did their information come from BB or from other intel sources? Based on many comments this should be germane to the discussion when considering the effect of BB detention ref mitigation/sentencing.
    I would hope that the effects on the organization as a whole would be considered in the sentencing. The UCMJ serves not just as a legal document to be followed for societies sake but as a part of good order and discipline.
    There have been literally hundreds of thousands of Soldiers in the last 16 years who have done their duty when cold, wet, hungry, tired and scared (and plenty who thought their chain of command was f’d up). The point is that they did their duty. It may be because of their loyalty to their unit, their fellow Soldiers or even because they feared the repercussions if they didn’t.
    Now we have a case where the Soldier didn’t do his duty. If there are thoughts that there are not many in the Army of all ranks watching this whole ordeal they would be mistaken. To look at this case with tunnel vision and not what the second/third order effects on the organization as a whole would be a grave mistake.

  34. Concerned Defender says:

    “I’m guilty, I’ve said I’m guilty, and while waiting for sentencing, I’ll just ask again if you’ll dismiss this…”  
    Is anyone aware of any guilty plea that, after the providency inquiry, and before sentencing, the Judge were to grant a motion to dismiss?  
    Seems frivolous in my humble opinion.  It also strikes me as insulting to Judge Nance who has already ruled on UCI issues as though the Defense counsel is challenging his prior rulings. 
    It might be different if BB didn’t just plead guilty, but we cannot ignore that pesky fact.  And that pretty much moots the entire UCI issue of how and why he’s facing trial.  HE DID IT…. 

  35. John O'Connor says:

    Call me a skeptic on baby-fit remedies that grant a windfall to the accused for apparent or attempted (but unsuccessful) UCI.. Once the MJ concludes that he doesn’t really care what POTUS said, that pretty much solves the problem in my mind. 

  36. John O'Connor says:

    Said another way, in my view, the MJ’s job is to make sure BB receives fair findings and fair punishment. If the MJ thinks POTUS’s comments are unlawful pretrial punishment (spoiler alert: they’re not) then she would fashion relief for that. But if the comments won’t affect his sentence, I just don’t think it’s appropriate for a judge to give free relief where the accused hasn’t been prejudiced because he disapproves, rightly or wrongly, of what POTUS said. And in the unlikely event that it would affect the sentence, it’s judge alone so as soon as he has determined how much it would affect his sentence, he can avoid that by denying relief for UCI and reverting back to what he would have done if the comments had not been made. 
    My strong guess is that the MJ doesn’t really,care about what POTUS thinks on sentencing. 

  37. JTB III says:

    JOC (and others), but isn’t there still the issue of apparent/implied UCI?

  38. Cheap Seats says:

    k fischer,
    I read the judge’s prior opinion the same way you do.  That is why I say that the MJ has to come to the ass-umptions listed.  That being said, voir dire may not solve an apparent UCI problem.  I have no doubt there is no actual UCI, but that is only half the battle.  I think it is really an academic exercise, however, as the plain language of Chapter 37 leaves POTUS out unless of course the POTUS (in the future) is a retiree.  Congress can choose to change that if they want.

  39. k fischer says:

    I might have dropped that motion because chances are that Judge Nance wasn’t aware that POTUS made the statement, but now he will know when he reads the motion.  Kind of like a Defense Counsel filing a motion to admit a civilian polygraph that showed no deception in a Judge alone trial.  Clearly it is prohibited under the MRE, but DC makes some sort of constitutional argument that is denied, but the Judge has it in the back of his mind that the accused passed the poly.
    This statement is the kind of stuff that could perhaps cause a factfinder to be more open minded about giving him a lighter sentence.  Say for instance in an undercover Craigslist sting conducted by CID, a military judge says Soldier A was illegally confinement for three months because the Commander committed an abuse of discretion.  The next day, Soldier B gets hemmed up in a similar sting by CID, and the Commander throws him into pretrial confinement where his defense counsel requests he be released because confinement him pretrial has been ruled under the same facts as an abuse of discretion.  I’m probably going to be very generous with additional credit for illegal pretrial confinement because the TC and the Commander knew about my thoughts on their decision to confine the Soldier.  The CinC is just like the Commander and that TC committing an act that was clearly and previously ill advised.

  40. The Silver Fox says:

    On whether the President can commit UCI, the government argued in the Boyce case that he (and other political appointees, including SECAF) indeed could commit UCI, but that it would be a due process analysis, not an Article 37 analysis.  Unfortunately CAAF misunderstood the government’s position and took as a given the caselaw WRT Article 37 applying to civilians.  See United States v. Boyce, 76 M.J. 242, n. 3 (C.A.A.F. 2017).  Also, if you want to see how amenable CAAF was to the idea of civilians not being able to commit UCI (in that case, SECNAV), go listen to the government’s oral argument in the Hutchins case: http://www.armfor.uscourts.gov/newcaaf/CourtAudio3/20121113C.wma.  They treated the Army counsel like a human piñata because he argued SECNAV couldn’t commit UCI. 
    Different CAAF now, but even Judge Baker was reluctant to give civilians a free pass in the Hutchins opinion (in his dissent), and insisted that they’d be subject to a UCI analysis under the 5th Amendment.  If that were indeed the case though, the typical UCI burdens would rest on the defense and they’d of course have a steeper hill to climb in order to prove UCI, rather than the fairly easy burden shift in the typical Article 37 scenario.   

  41. The Silver Fox says:

    Correction:  Marine Corps counsel.  Here’s the link (staring at 28:45):  http://www.armfor.uscourts.gov/newcaaf/CourtAudio3/20121113C.wma

  42. The Silver Fox says:

    (UCI discussion starting around 42:00)

  43. Concerned Defender says:

    I predict a Ruling along these lines:
    MJ was unaware of the statements.  MJ had previously ruled on the UCI issue.  The statements have zero impact on the MJ. Motion denied.  Guilty plea provident and accepted.  Is counsel ready for sentencing?

  44. Concerned Defender says:

    This is a serious question for those thinking BB gets a slap on the wrist.  
    Misbehavior is so serious it’s one of the few crimes that allows a life sentence.  If not BB’s scenario, what scenario would need to occur to actually get a serious heavy sentence like a few decades confinement?  What would that aggravation look like?  
    Keep in mind there is at least some evidence – which I hope the government uses – that BB was a Taliban sympathizer and tried to join.  As disillusioned as that is, it appears to be a factual allegation.

    “Here is what I know, not from hearsay, but because I was there,” writes the soldier who says he was serving with the US Special Operations Command when he was called on to search for Bergdahl . 
    “Bergdahl became a sympathiser, walked off his post to seek out the Taliban in order to join their ranks, to help and live with them.  In exchange for his release, the United States released the following five known Taliban – Khairullah Khairkhwa, Mullah Norullah Noori, Mullah Norullah Noori, Abdul Haq Wasiq, Mohammed Nabi – who were immediately welcomed back into the Taliban network.”
    The soldier claims: “According to a few close friends of his and some letters he wrote home, he just wanted to find himself.  Bergdahl left behind his weapon and other sensitive items, shipped his personal belongings home to Idaho, only taking some water and his knife.  
    “Bergdhal had simply become disenchanted with Army life and wanted to seek out the Taliban on his own free will. As more of the information came in, my unit, along with others in the community, simply stopped looking for him.”


  45. k fischer says:

    I would imagine the scenario where a Soldier during a battle misbehaved in front of the enemy and a bunch of Soldiers died during the battle due to his misbehavior. 
    The most recent case where misbehavior was charged and the accused convicted was that of Sgt. Ronald “Combat Jack” Fosdyck who left his position during an attack on his FOB to go beat off and get his “combat jack.”  I don’t think any evidence was submitted indicating that a death resulted from his misbehavior, and CJ got a BCD and reduction to E-1.
    I think that length of Bergdahl’s sentence depends solely on how well the Government sells that people died and were injured as a result of him leaving his post.  If the MJ does not buy it, then the mitigation of his hardship suffered from being held captive by  the Taliban will likely cancel out confinement.  If the MJ believes that Soldiers were injured and died because of Bergdahl’s actions, then BB’s probably going to do some hard time.

  46. stewie says:

    kf, a long prison sentence could occur from several theoretical fact patterns for this charge:
    1. Soldier actively does something during a firefight to help the enemy or hinder his unit (worse if someone killed or injured) which is the case you listed.
    2. Soldier actively seeks to join the enemy. Not much evidence of that in this case, despite what CD tries to present. I don’t think those facts will be in front of the MJ.
    That’s it to me.
    What we have here is a Soldier who left his post and then got caught. That’s not in the same universe as 1-2 IMO. As you say, it gets some level closer if the gov can prove that people actually got hurt/killed while primarily looking for him. Not the “it was always a side mission to look for him” during our regular missions. If they can’t, then the time in captivity is more or less his punishment.

  47. k fischer says:

     Not the “it was always a side mission to look for him” during our regular missions. If they can’t, then the time in captivity is more or less his punishment.

    Exactly.  If nobody got killed or injured on a mission designed primarily to look for him, then there is no aggravation.  Seems like in that scenario the aggravation is about the same as or less than that of Combat Jack who had no mitigation of his offense.

  48. JC89 says:

    Could there be any consideration of third order effects? By this I am talking about results of pulling units/organizations off other missions in order to conduct the search. For example, if a unit was tasked to strike a IED cell but was called away to search, could that be considered? I know that proof of harm (the IED cell that wasn’t targeted was able to conduct a mission against coalition forces) would be extremely difficult if not impossible but couldn’t that be an assumed effect?

  49. stewie says:

    JC89, aggravation has to be “directly related to or resulting from” the offense. To me that generally means when you are talking “third-order” effects you are probably not talking about directly related to or resulting from.
    That’s not a hard and fast rule, I’m sure exceptions can be made, but just as a general principle, it’s going to be harder to prove “third order effects” are aggravation.

  50. Anon says:

    In the podcast Serial, BB’s own battalion Sergeant Major admitted that senior leadership knew BB was in Pakistan, however couldn’t pass that information down the chain or obviously search Pakistan, just Afghanistan.  So if anyone was killed or injured searching for BB in Afghanistan, and it was known by leadership at the time huge wasn’t in Afghanistan, isn’t that on big Army?

  51. Brian Bouffard says:

    So if anyone was killed or injured searching for BB in Afghanistan, and it was known by leadership at the time huge wasn’t in Afghanistan, isn’t that on big Army?

    That is a fascinating question.
    TC:  “Judge, we want to introduce aggravation evidence that casualties were sustained by people instructed to look for SGT Bergdahl in places where we knew at the time he could not have been found.”
    MJ:  “Granted, once we’re in a different court-martial of whoever issued that stupid order.  Until then, denied.”

  52. Saul says:

    That is a fascinating question. TC:  “Judge, we want to introduce aggravation evidence that casualties were sustained by people instructed to look for SGT Bergdahl in places where we knew at the time he could not have been found.”MJ:  “Granted, once we’re in a different court-martial of whoever issued that stupid order.  Until then, denied.”

    Considering his alleged excuse was the incompetency of his leadership, this might actually help BB.

  53. Concerned Defender says:

    As for the where and when Bergdahl’s INTENTIONAL crimes led him to parts of Afghanistan and Pakistan, and when the Army gained intelligence and suspected his location *might* be in Pakistan, is hotly debated.  
    1.  He voluntarily absented himself 30 June 2009.
    2.  About a week later, o/a 8 July, SFC Allen was shot in the head resulting in a TBI while searching for BB.  Do you REALLY think the military would call off a search and rescue that quickly relying on dubious intel of BB’s location *might* be in Pakistan?  Surely they would be looking and gathering intel for longer than a week.  Maybe, just maybe, the intel was misleading or wrong?
    However that argument that at some point by August they were fairly confident (at least at the top) that he had been moved to Pakistan (based on intel gathering and failed searches in July/August) may be the very argument that severed the aggravation of the 6 Soldiers that died looking for him in the fall of 2009.  Joes there may have been informed that they were still looking for him, but perhaps in reality they were not.  It’s unclear.  But it may be the reason those are not being allowed as aggravation.

  54. JC89 says:

    Thanks for the education. I know that there are rules and procedures in order to protect all sides but am unfamiliar with most of them.