CAAFlog » Court-Martial News » Sgt Bergdahl

In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees that a report by the House Armed Services Committee found violated several laws. Ten months later, in March of 2015, now-Sergeant Bergdahl (who was promoted while in captivity as if he were a prisoner of war) was charged with desertion and misbehavior offenses, his case was referred for trial by general court-martial, and last week Bergdahl elected to be tried by a court-martial composed of a military judge alone.

As the case progressed some wondered why Bergdahl is being prosecuted after nearly five years of captivity in the hands of insurgents. The facts of his capture are relatively undisputed; in a moment of severe naivete (or maybe narcissism) Bergdahl walked away from his combat outpost and into the Afghan wilderness. The subsequent half-decade of maltreatment he suffered is undoubtedly a harsh price to pay for his terrible decision. Nevertheless – and despite the recommendation of the Article 32 preliminary hearing officer that Bergdahl face a lesser, special court-martial not authorized to adjudge a punitive discharge – Bergdahl will soon be tried by a general court-martial where he faces the possibility of a dishonorable discharge and confinement for as long as life without the possibility of parole.

Bergdahl’s decision to be tried by a military judge alone rather than a panel of members came after a year of litigation about comments made by President Trump during the campaign (as well as comments by others) that Bergdahl’s defense counsel claimed make it impossible for Bergdahl to receive a fair trial. A judge-alone trial likely waives that issue, and almost certainly cures it. It’s a surprising gift to the prosecution in a case with seemingly-overwhelming evidence, including that Bergdahl probably confessed to the desertion offense, and his post-recovery statements to film producer Mark Boal are probably a confession to the misbehavior offense as well.

One possible rationale for the decision to elect trial by a military judge alone is that a military judge will give Bergdahl credit for his time in captivity, at least by considering that time as a significant mitigating factor. This, of course, assumes that Bergdahl is guilty. But assuming that he is guilty of the desertion and misbehavior (or either) offenses that led to his capture, it’s not at all clear that his captivity mitigates his misconduct. Rather, I think there’s a stronger argument that Bergdahl’s captivity is a matter in aggravation.

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After so many motions, writ-petitions, and breathless claims that Army Sergeant Bergdahl can’t get a fair trial by court-martial on the charges of desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2) and misbehavior before the enemy in violation of Article 99 for leaving his combat outpost in Patika Province, Afghanistan (leading to his capture by the Taliban and captivity for nearly five years), Bergdahl has elected to be tried by a court-martial composed of a military judge alone:
(source).

CAAF issued this order on Friday:

No. 17-0307/AR. Robert B. Bergdahl v. Jeffrey R. Nance and United States. CCA 20170114. No. 17-0307/AR. Robert B. Bergdahl, Appellant v. Jeffrey R. Nance, Colonel, J.A. Military Judge, and United States, Appellees. CCA 20170114. On consideration of the writ-appeal petition and the motion of Former Federal Judges to file an amicus brief, it is ordered that said motion is hereby denied, and that said writ-appeal petition is hereby denied.

This was Bergdahl’s seventh writ petition, and it sought dismissal of his case because of things said during the presidential campaign (last discussed here).

Bergdahl’s prior trips to Judiciary Square were noted here (#6), here (#5), here (#4), here (#3), here (#2), and here (#1).

Here is the Fayetteville Observer’s coverage of today’s scheduled hearing on motions in the SGT Bowe Bergdahl case. In today’s motions “prosecutors in April asked for the declassification of seven documents they plan to use during the proceedings.” In case you don’t get out much, from the FayObs:

Bergdahl is charged with desertion and misbehavior before the enemy by endangering the safety of a command, unit or place. He could face life imprisonment if convicted of misbehavior before the enemy.

He walked off his remote post in Afghanistan in 2009 and was subsequently held by the Taliban for five years.

Bergdahl’s appeal remains pending at CAAF, Stars and Strupes coverage here.

In an opinion piece published by the Alaska Dispatch News and available here, Professors Rachel VanLandingham and Joshua Kastenberg (both retired Air Force Lieutenant Colonels and former Air Force military judges) call for the complete dismissal of the charges against Sergeant Bergdahl (CAAFlog news page) because:

On the campaign trail, then-candidate Trump repeatedly, and publicly, condemned Bergdahl as a traitor, and variously called for his execution by firing squad and by being pushed out of an airplane. This was not a one-off event; candidate Trump made his conclusion that Bergdahl is a traitor and should be executed a campaign meme, returning over and over to the same rhetoric.

Trump has never disavowed these comments. While it is true he hasn’t repeated them in the few short months he’s been in office, that’s because he doesn’t have to -– he knows he has already sent a very loud, very clear and very powerful message to his military subordinates (many of whom voted for him) he wants Bergdahl convicted and given the harshest punishment possible.

They echo the oft-repeated claim of Bergdahl’s defense counsel that the President’s campaign-trail comments are unlawful command influence so severe that it can’t be remedied. That claim is the subject of a seventh petition for extraordinary relief currently pending before CAAF (noted here) (pleadings available here).

While Professors VanLandingham and Kastenberg argue that the continued prosecution of Bergdahl risks “the fairness, credibility and integrity of the military justice system,” I believe that the danger to military justice is in dismissal, not continued prosecution.

Dismissal would, as I explained here, result in Sergeant Bergdahl’s honorable discharge from the Army, and it would also guarantee him other benefits in connection with his alleged desertion (and subsequent capture by the Taliban); an offense that, as I explained here, it seems Bergdahl confessed to committing. Bergdahl also engaged in a dialogue with filmmaker Mark Boal that resulted in roughly 25 hours of tape, and Bergdahl allowed the Serial podcast to use those recordings (according to the Serial podcast; link to episode transcript). Those recordings contain more damaging admissions and other aggravating evidence (some discussion here), and their publication is likely far more damaging to Bergdahl than anything said on the campaign trail.

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.

Professors VanLandingham and Kastenberg also lash out at their Army colleagues:

Bergdahl’s defense has already tried to get this case dismissed on these grounds. However, not surprisingly, the military judge and Army appellate court (also consisting of active-duty military members) have declined to cross their commander-in-chief in that manner.

I think this is a foul blow. 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. VanLandingham and Kastenberg must have a remarkably dim view of the Army’s Judge Advocate General’s Corps.

The credibility of the military justice system is founded in its systemic ability to do justice, not in the result of one particular (and factually and emotionally thorny) case. If those championing dismissal of the charges against Bergdahl really believe that the trial military judge and the Army CCA are incapable of remedying unlawful command influence committed by a presidential candidate who subsequently gets elected, then the damage to the military justice system is already done.

There is significant evidence that Bergdahl committed multiple offenses in departing and staying away from his combat outpost, and many of his fellow soldiers suffered as a result. That Bergdahl spent five years in captivity is a mitigating factor for sure, but it’s one that must be considered in context with the other facts of the case.

The appropriate place for that to occur in the first instance is neither the court of public opinion nor the appellate courtroom; it’s a court-martial.

CAAF granted review in three cases last week. All are from the Army:

No. 17-0187/AR. U.S. v. Brian G. Short. CCA 20150320. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER GOVERNMENT COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY MADE IMPROPER ARGUMENT AFTER REPEATEDLY ELICITING INADMISSIBLE TESTIMONY.

Briefs will be filed under Rule 25.

The CCA’s opinion in Short is available here.

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER DILATORY POST-TRIAL PROCESSING VIOLATED APPELLANT’S DUE PROCESS RIGHTS AND WARRANTS RELIEF WHEN 782 DAYS ELAPSED BETWEEN DOCKETING AT THE ARMY COURT AND OPINION.

Briefs will be filed under Rule 25.

The CCA’s opinion in Gonzalez-Gomez is available here.

No. 17-0203/AR. U.S. v. David L. Jerkins. CCA 20140071. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ALLOWING A GENERAL OFFICER MEMORANDUM OF REPRIMAND INTO SENTENCING EVIDENCE WHERE THE REPRIMAND WAS ISSUED TWO WEEKS BEFORE THE COURT-MARTIAL AND CONTAINED HIGHLY PREJUDICIAL AND MISLEADING LANGUAGE.

Briefs will be filed under Rule 25.

The CCA’s opinion in Jerkins is available here.

CAAF also docketed a petition for a writ of prohibition in United States v. Katso (CAAFlog case page):

No. 17-0310/AF. Joshua Katso, Petitioner v. Christopher F. Burne, Lieutenant General, United States Air Force, in his official capacity as Judge Advocate General of the United States, and Katherine E. Oler, Colonel, United States Air Force, in her official capacity as Chief of the United States Air Force Government Trial and Appellate Counsel Division. CCA 38005. Notice is hereby given that a petition for extraordinary relief in the nature of a petition for writ of prohibition was filed under Rule 27(a) on this date.

Finally, CAAF docketed a writ petition in Bergdahl. As the seventh such petition by an increasingly desperate Bergdahl (whose trial is expected to occur this summer), its filing is just barely noteworthy.

Here is CNN’s coverage of the military judge’s denial of SGT Bergdahl’s motion to dismiss the charges against him based on President Ttump’s campaign trail comments calling Bergdahl a “traitor” and saying that he should be shot. Bergdahl, as you probably know and CNN reports, “faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014,” until a prisoner swap returned him to US custody. Here is CNN’s link to a copy of the 8-page decision from Colonel Nance, the judge in the case. 

Here is a link to The Hill’s coverage of SGT Bowe Bergdahl’s motion to dismiss the charges against him based on Unlawful Command Influence (UCI). The motion argues, according to the article, that President Trump’s statements on the campaign trail calling for Bergdahl’s execution make it impossible for the SGT to obtain a fair trial. Bergdahl Will face a General Court Martial in April on charges of “desertion and misbehavior before the enemy after walking away from his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.” More from Politico here

Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).

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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.

Maybe the timing of these developments is just a coincidence, but from one news report (here) we learn that trial in the Bergdahl case will be delayed until May because:

Prosecutors filed a motion in October requesting a trial delay. They cited the pace at which they’re able to get approval to give the defense classified evidence as a main reason for the delay.

And from another news report (here) we learn that the defense is positively giddy because it sees the election of Donald Trump to the presidency as an uncurable error:

“We’re deadly serious about seeking a dismissal,” Eugene R. Fidell told The Fayetteville Observer on Wednesday. “There’s never been a presidential candidate who singled out a military member for this kind of abuse before. It’s never happened.”

Deadly serious is an unfortunate choice of words considering that the classified evidence addressed first report includes evidence of soldiers who were allegedly injured during search and rescue missions for Bergdahl:

Former Army Spc. Jonathan Morita also testified Monday, according to the AP, describing when an unexploded rocket-propelled grenade smashed into a rifle he was holding with the force of a hammer onto his hand.

“I looked at it, and I thought, ‘That’s going to hurt in the morning.’ I didn’t feel it. Too much adrenaline,” he testified, according to the AP report.

Defense attorneys have said it was the Taliban, not Bergdahl, who caused the injuries.

And then there’s this (from the second news report):

[Retired Army JAG and law professor Victor M.] Hansen said the bigger challenge for Bergdahl’s lawyers may be to overcome the intense pretrial publicity. Bergdahl was the subject of the second season of a popular podcast, “Serial,” that played tapes of an interview Bergdahl did with a filmmaker explaining he walked off his base to cause a crisis that would catch the attention of military brass.

Deep in the category of it’s never happened before is Bergdahl’s decision to talk with filmmaker Mark Boal for long enough to produce 25 hours of recorded conversations. Conversations that were shared with the Serial podcast (presumably with Bergdahl’s permission). Conversations that include some incredibly damaging statements, as discussed in our #8 Military Justice Story of 2015.

But Bergdahl has a Trump card.

Yesterday Sergeant Bergdahl filed a petition for extraordinary relief in the form of a writ of mandamus at CAAF. The petition has docket number no. 17-0069/AR and is available on the Bergdahl docket website, here. A searchable version is available here.

The petition asserts:

This original mandamus petition raises an important question that directly implicates public confidence in the administration of justice: is it lawful for the chairman of the Senate Armed Services Committee (SASC) to publicly brand a specific accused as “clearly” guilty of a serious offense and threaten to conduct a hearing if he is not punished at a court-martial?1 Without addressing due process, the military judge found no violation of Article 37(a), UCMJ.2 The U.S. Army Court of Criminal Appeals failed to act in a timely fashion on a mandamus petition seeking to overturn that decision. See § II infra.

The circumstances require this Court to exercise its original-writ authority under the All Writs Act, 28 U.S.C. § 1651 (2012), and defend the military justice system from flagrantly illegal interference by the single most powerful member of SASC, John S. McCain.

Pet. at 1. The relief requested is “a writ of mandamus dismissing the charges and specifications and in any event limiting the punishment that may be adjudged to No Punishment.” Pet. at 4 (capitalization in original).

I previously addressed this issue, and reasons why the relief requested is unwarranted, in this post.

I believe that this is Bergdahl’s sixth trip to Judiciary Square, but who can really keep track at this point.

Having discovered that General Abrams – the convening authority in the Bergdahl case – failed to review matters submitted by the defense before referring the case for trial by a general court-martial, and also that the General destroyed letters sent to him regarding his referral decision, the defense motion to replace General Abrams as convening authority (previously discussed here) seems to have found some traction.

Stars and Stripes reports here that General Abrams has been ordered to testify by telephone.

In a motion filed yesterday in the Bergdahl case and available here, Sergeant Bergdahl’s defense team seeks to disqualify General Abrams as convening authority for three reasons.

First, because General Abrams served as the principal military assistant to the Secretary of Defense before his current assignment, and was therefore involved in the Bergdahl search and recovery operations, the Defense asserts that he is a fact witness who cannot also serve as convening authority.

Second, General Abrams apparently did not consider the defense comments to the Article 32 preliminary hearing report. According to the motion:

When interviewed, [General Abrams] claimed that [the defense submission] was written for “the lawyers” and suggested that if the defense wanted him to read the submission, it should be written in “plain-speak.”

Mot. at 7. The defense calls this “preposterous” and asserts that it requires General Abrams’ disqualification and a new referral decision. Mot. at 7.

Finally, the motion asserts that:

GEN Abrams admitted having received over 100 letters about SGT Bergdahl’s case. These were addressed to him and sent through the mail. He said they spanned the full spectrum of opinion, and came from all types of people and on both sides of the case. When defense counsel asked to see the letters, GEN Abrams revealed that he had destroyed them by burning.

Mot. at 7 (emphasis added).

One can only hope that the General was not so reckless as to destroy the only copies of the letters (which, of course, were official records).

The defense also asks that any court-martial be prohibited from adjudging any punishment in the event Bergdahl is convicted. Bergdahl recently also sought this remedy in response to Senator McCain’s comments on his case (discussed here).

In a motion filed yesterday and available here, the defense team in the Bergdahl case (CAAFlog news page) asks that the charges against him be dismissed with prejudice or alternatively that the court-martial be prohibited from adjudging any punishment in the event he is convicted.

The basis for the defense request is the statement of Senator John McCain, current Chairman of the Senate Armed Services Committee, that:

If it comes out that [SGT Bergdahl] has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee …. And I am not prejudging, OK, but it is well known that in the searches for Bergdahl, after-we know now-he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter. We need to have a hearing on that.

Mot. at 6 (marks in original). The motion then asserts that:

It is difficult to imagine a more blatant threat to the fair administration of military justice than the one Sen. McCain uttered. That he never carried through on it – or hasn’t yet – is of no moment. The threat itself is the problem.

Mot. at 12 (emphases in original).

While McCain’s comment may require some corrective measure by the court-martial, it’s hard to see how granting either of the forms of relief requested by the defense would be anything less than an enormous windfall for Bergdahl (who functionally confessed to the desertion charge and then made numerous other damaging admissions to a journalist that were broadcast – with Bergdahl’s consent – by NPR in the Serial Podcast). The defense must have an awfully dim view of the intestinal fortitude of the Army leaders responsible for this case if it really believes that the mere threat of a hearing will necessarily and irreparably lead to unfairness in the court-martial proceedings.

The reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army leaders in the face of McCain’s threat:

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