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).
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.
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:
Season 2 of the popular NPR podcast Serial was about the Bergdahl case, and the source material for the podcast included recordings of post-recovery interviews between Bergdahl and filmmaker Mark Boal. Specifically, there are roughly 25 hours of recorded conversations (according to the podcast – link to episode transcript) discussing Bergdahl’s life, the reasons he left his unit, and his capture and captivity. Some of those recordings were played during the Serial podcast, and they included numerous damaging admissions by Bergdahl (some discussed here).
It’s unsurprising that Army prosecutors would seek to obtain those recordings are review them for additional evidence. Boal, however, is trying to prevent that.
In a case filed in the U.S. District Court for the Central District of California on July 20, 2016, Boal seeks to enjoin issuance or enforcement of a subpoena for the recordings. The case is Mark Boal et al. v. United States of America et al., docket # 2:16-cv-05407-GHK-GJS.
A copy of the complaint is available here. It argues, in part, that:
Issuance and enforcement of the Subpoena will irreparably harm Plaintiffs. Either Plaintiffs will be forced to reveal unpublished and unbroadcast segments of interviews gathered for news and public affairs reporting purposes, which include confidential information, or Plaintiffs will be subjected to contempt proceedings for their failure to do so. Disclosure will irreparably damage Plaintiffs’ ability to gather news and give sources and subjects confidence in their ability to keep materials confidential. Contempt proceedings will cause loss of liberty or property that is unwarranted and unconstitutional. In either event, Plaintiffs – third parties to the Bergdahl court martial – will be unduly burdened by the Subpoena and forced to expend substantial sums on counsel.
Complaint at 6-7.
Note: Later today I will be part of the a free webinar on the Bergdahl case presented by the Young Lawyers Division of the American Bar Association. You can register here.
The Army’s prosecution of Sergeant Robert Bowdrie (“Bowe”) Bergdahl (CAAFlog news page) for 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, was our #8 Military Justice Story of 2015.
As the case progresses many wonder why Bergdahl faces prosecution after nearly five years of brutal captivity in the hands of insurgents. The facts of his capture are relatively undisputed – in a moment of severe naivete (or narcissism) he walked away from his combat outpost and into the Afghan wilderness – and the subsequent half-decade of maltreatment he suffered is undoubtedly a harsh price to pay for his terrible decision. Yet Bergdahl faces a general court-martial and the possibility of confinement for life without the possibility of parole. Why, one wonders, would the Army subject him to such a court-martial?
It’s because the Army has no choice.
Next week, on Wednesday, July 13, 2016, from 1:00 PM – 2:00 PM EDT, the Young Lawyers Division of the American Bar Association will host a free webinar on the Bergdahl case:
Hero or Traitor?
An Overview of the Military Justice System and the Case For (and Against) the Prosecution of SGT Bowe Bergdahl
Join us on July 13 at 1 PM ET for this Free Webinar
While SGT Bowe Bergdahl’s return to the United States after nearly five years in captivity in Afghanistan was celebrated by some–including President Obama’s very public remarks from the Rose Garden upon his release–things began spiraling quickly for Bergdahl as allegations arose in the news media and through American’s most popular and talked about podcast, Serial, that shed a different light on the circumstances of his disappearance and time in captivity. Now Bergdahl finds himself standing trial before a U.S. Army court-martial. Tune in to hear military justice policy experts discuss the strengths and weaknesses of the government’s case, a primer on the military legal system, and how Bergdahl will–and is–defending himself against the government’s charges.
I am one of the presenters.
In an opinion issued yesterday the Army CCA denies a Government appeal under Article 62 of a military judge’s ruling regarding defense access to classified information in the Bergdahl case.
The opinion is available here.
The court martial of Army Master Sgt Omar Velez Pagan began in Fayetteville, NC reprots the Fayetteville Observer here. The Master Sgt. is accused of murderimg his mistress while assigned as a geo-bachelor in Panama.
The WaPo editorial board weighs in on the Sgt. Bowe Bergdahl case, here. From the editorial:
We agree with those who say that Mr. Bergdahl’s conduct in leaving his unit was wrong, that it put lives at risk and that, despite his psychological issues, he should be accountable. At the same time, the Army may have contributed to this debacle by enlisting a soldier it shouldn’t have. And even without formal accountability, he has already suffered horribly for his actions.
In our view, the military justice system will pass this test to the extent it tempers judgment with due consideration of everything the case reveals about human frailty — and with mercy.
I am sure this will ignite comments, so please be mindful of the comments policy.
Yesterday CAAF granted review of a Grostefon issue in an Army case:
No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386. 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 granted on the following issue personally asserted by Appellant:
WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S LAPTOP COMPUTER.
Briefs will be filed under Rule 25.
(emphasis added). This is the second Grostefon issue granted this term, the first being in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).
The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to firstname.lastname@example.org
Additionally, yesterday CAAF denied the latest writ-appeal from Sergant Bergdahl:
No. 16-0339/AR. Robert B. Bergdahl v. United States. CCA 20160073. On consideration of Appellant’s writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on a petition for a writ of prohibition to stay the proceedings and Appellant’s motion for an order requiring Appellee to file and serve a transcript, it is ordered that said writ-appeal is denied and said motion is denied as moot.