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 in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months after his recovery, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and Bergdahl made it clear that he believed that a dishonorable discharge was the appropriate punishment. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The Army CCA affirmed the findings and sentence last month, in a published decision discussed here.

On Monday CAAF docketed a petition for grant of review inre Bergdahl’s case. The supplement to the petition is available here.

The supplement raises four issues:

I. WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

II. WHETHER THE CHARGES WERE UNREASONABLY MULTIPLIED.

III. WHETHER THE MILITARY JUDGE MISAPPLIED THE SPECIFIC INTENT ELEMENT OF SHORT DESERTION.

IV. WHETHER THE MISBEHAVIOR BEFORE THE ENEMY SPECIFICATION STATES AN OFFENSE.

One particularly interesting part of the supplement is this passage, in which Bergdahl’s decision to abandon his post and assigned duties is characterized as bravery:

Charging both desertion and misbehavior was also an exaggeration. Short desertion involves a conscious purpose to shirk or avoid one’s duty. SGT Bergdahl’s absence from guard duty was a collateral consequence of his conscious purpose to travel to another base within the command. Misbehavior charges quintessentially involve cowardice, whereas this case involves a form of (misplaced) bravery.

Supp. at 22 (emphasis omitted).

In a published decision issued yesterday and available here, a three-judge panel of the Army CCA affirms the findings and sentence in the Bergdahl case.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later, in March of 2015, Bergdahl (then a Sergeant) was charged with 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.

Bergdahl’s case made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016, and the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press before trial, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.

Eventually, however, Sergeant Bergdahl pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and the CCA’s opinion noted that Bergdahl “made clear to the court that he believed the appropriate punishment was a dishonorable discharge.” Slip op. at 6. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge.

During that time, Bergdahl’s case captured the attention of the late Senator John McCain, and of then-candidate and later-President Donald Trump. Specifically, Senator McCain threatened hearings if Bergdahl received no punishment, and President Trump made numerous statements and tweets about the case, both before and after his election, including calling Bergdahl a traitor and calling the adjudged sentence “a complete and total disgrace to our Country and to our Military.” Slip op. at 6 (punctuation in original).

After Bergdahl was sentenced, the defense matters to the convening authority that included a post-sentencing tweet from President Trump but requested only that the case be sent to a different convening authority for possible clemency. The defense did not request sentence reduction. The convening authority did not transfer the case, and approved the findings and sentence as adjudged.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not made any request for clemency, on appeal Bergdahl “contend[ed that] unlawful command influence [UCI] was so endemic to [his] trial and the post-trial processing that [he] was denied a fair trial, or fair post-trial processing, or the appearance thereof.” Slip op. at 1.

The CCA rejected the claim in yesterday’s decision, with a majority of the panel reaching the unsurprising conclusion that, even considering the cumulative impact of all of the potential UCI:

the cumulative effect could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding.

Slip op at 18-19.

One judge dissents, however, writing that:

The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.” In light of these recommendations from senior leaders who looked closely at appellant’s case, the military judge’s ultimate sentence was hardly a windfall, and it would have been conceivable that the convening authority could have provided additional clemency. Contrary to the majority’s holding, I find that UCI infected that critical post-trial process.

Slip op. at 28-29. Accordingly, and despite the fact that Bergdahl specifically requested a dishonorable discharge, agreed that a dishonorable discharge is appropriate, and did not request mitigation of the dishonorable discharge from the convening authority, the dissenting judge believes that:

Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet.

Slip op. at 29.

On November 1, 2017, Marine Corps Brigadier General John Baker was confined to his quarters (a room in a trailer) at U.S. Naval Station Guantanamo Bay. Air Force Military Judge Colonel Vance Spath ordered the confinement after finding General Baker in contempt (for conduct that clearly did not meet the applicable definition of contempt).

Two days later, at about 11:30 a.m. eastern on November 3, 2017, Army Military Judge Colonel Jeffery Nance sentenced Sergeant Bowe Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge – but no confinement – for Bergdahl’s 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.

The facts as we know them suggest that General Baker was still confined at the time Bergdahl’s no-confinement sentence was announced. The convening authority sua sponte deferred Baker’s remaining confinement a few hours later, shortly before 1 p.m. eastern.

The incongruity – if not outright absurdity – of General Baker’s confinement and Sergeant Bergdahl’s liberty is the #6 Military Justice Story of 2017.

Read more »

A military judge has found that Bowe Bergdahl should serve no prison time for endangering his comrades by walking off his Afghanistan post.

The judge also gave Bergdahl a dishonorable discharge, reduced his rank to private and said he must forfeit pay equal to $1,000 per month for 10 months. The judge made no other comments.

It’s not well-reported elsewhere, but Sergeant Bergdahl’s pleas of guilty to 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, included exceptions and substitutions limiting his desertion to only a single day.

An Army press release available here explained that:

Sgt. Bergdahl entered pleas of guilty to both charges, but indicated his period of desertion was for only one day. Following the entry of pleas, the government introduced evidence in support of the position that the period of desertion was for the entire period of Sgt. Bergdahl’s captivity. The military judge found Sgt. Bergdahl guilty of both charges with a one day period of desertion. The military judge also denied a defense motion to dismiss one of the charges as excessive, but announced he would combine both charges for sentencing purposes.

The Associated Press reports here that:

A military judge on Thursday began deliberating the punishment for Army Sgt. Bowe Bergdahl after defense attorneys asked for no prison time while prosecutors sought more than a decade behind bars.

Army Col. Jeffery Nance said he planned to spend the afternoon considering evidence and would open court again Friday morning to continue deliberating then. It wasn’t clear when he would deliver the sentence.

Bergdahl faces up to life in prison after pleading guilty to desertion and misbehavior before the enemy for walking off his remote post in Afghanistan in 2009. In closing arguments, prosecutors asked for a sentence of 14 years in prison, citing serious wounds to service members who looked for Bergdahl.

“Sgt. Bergdahl does not have a monopoly on suffering as a result of his choices,” said Maj. Justin Oshana, a prosecutor. Contrasting Bergdahl to the wounded searchers, he added, “The difference is all the suffering stems from his choice.”

But defense attorneys argued Bergdahl already suffered enough confinement during five years of brutal captivity by Taliban allies. They asked the judge to give their client a dishonorable discharge and no prison time. Their argument for leniency also cited harsh campaign-trail criticism by Donald Trump and Bergdahl’s mental disorders.

Any discharge as a result of a general court-martial will permanently deprive Sergeant Bergdahl of benefits administered by the Department of Veterans Affairs as a matter of law.

Various news outlets are reporting on a ruling by Army military judge Colonel Nance that the President’s comments about the Bergdahl case neither constitute unlawful command influence nor create the appearance of unlawful command influence.

For example, the Associated Press reports here that:

President Donald Trump’s scathing criticism of Army Sgt. Bowe Bergdahl won’t prevent the soldier from receiving a fair sentence for endangering comrades by walking off his post in Afghanistan in 2009, a judge ruled Monday.

The judge, Army Col. Jeffery Nance, said the court has not been directly affected by Trump’s remarks, nor would the comments cause a reasonable member of the public to have doubts about the fairness of the military justice system. He had to consider both questions in deciding on whether actual or apparent unlawful command influence was interfering in the case.

“I am completely unaffected by any opinions President Trump may have about Sgt. Bergdahl,” the judge said. He added that prosecutors had convinced him that the Trump comments won’t put “an intolerable strain” on the public perception of military courts.

Bergdahl’s defense counsel sought dismissal of all charges (after Bergdahl pleaded guilty) because the President made a brief reference to the case during a press conference.

Thanks to our reader for the tip.

Having pleaded guilty last week without the benefit of a pretrial agreement, Sergeant Bergdahl was scheduled to be sentenced by a general court-martial composed of a military judge alone today. But the sentencing is continued until Wednesday as the military judge – Army Colonel Jeffrey Nance – considers a last-minute defense motion to dismiss. The Associated press reports here that:

The judge deciding Army Sgt. Bowe Bergdahl’s punishment said Monday he is concerned that President Donald Trump’s comments about the case could impact the public’s perception of the military justice system.

Sentencing was set to begin Monday for Bergdahl on charges that he endangered comrades by walking off his post in Afghanistan in 2009. But the judge, Army Col. Jeffery R. Nance, instead heard last-minute arguments by defense attorneys that recent comments by Trump are preventing a fair proceeding. Bergdahl faces a maximum sentence of life in prison.

Nance allowed the attorneys to question him about whether he was swayed by Trump’s comments. Nance said he wasn’t aware of the comments beyond what was in the legal motions. Nance said he plans to retire as a colonel in about a year and isn’t motivated by pleasing commanders to win a future promotion.

“I don’t have any doubt whatsoever that I can be fair and impartial in the sentencing in this matter,” Nance said.

The AP report also notes that “sentencing was set to resume Wednesday because a defense attorney wasn’t available Tuesday, the judge said.”

Colonel Nance’s confidence that he can be fair and impartial, the objective evidence supporting that conclusion (including his record and his impending retirement), Bergdahl’s guilty pleas, and the enormous publicity surrounding this case, provide plenty of reasons to reject the defense motion to dismiss that is based on the President’s recent brief reference to his prior comments in the case.

Read more »

THE WHITE HOUSE

Office of the Press Secretary

FOR IMMEDIATE RELEASE

October 20, 2017

*Statement Regarding Military Justice*

**

Military justice is essential to good order and discipline, which is indispensable to maintaining our armed forces as the best in the world. Each military justice case must be resolved on its own facts. The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations. There are no expected or required dispositions, outcomes, or sentences in any military justice case, other than those resulting from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law by officials exercising their independent judgment.

###

Source.

Thanks to our reader for the tip.

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.

THE PRESIDENT: Yes.

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.

As suspected here, and expected here, the Associated Press reports here that Sergeant Bergdahl pleaded guilty this morning.

Surprisingly, the guilty pleas (a dive) were entered without the benefit of a pretrial agreement (a naked plea). From the AP report:

FORT BRAGG, N.C. (AP) — Army Sgt. Bowe Bergdahl, a Taliban captive for five years after abandoning his post in Afghanistan, pleaded guilty Monday to desertion and misbehavior-before-the-enemy charges that could put him in prison for life.

“I understand that leaving was against the law,” said Bergdahl, whose decision to walk off his remote post in Afghanistan in 2009 prompted intense search and recovery missions, during which some of his comrades were seriously wounded.

Bergdahl, 31, is accused of endangering his comrades by abandoning his post without authorization. He told a general after his release from five years in enemy hands that he did it with the intention of reaching other commanders and drawing attention to what he saw as problems with his unit.

The prosecution made no agreement to limit Bergdahl’s punishment in return for the soldier’s guilty pleas. The judge, Army Col. Judge Jeffery R. Nance, reminded Bergdahl that he could spend the rest of his life in prison, and asked him one last time if he wanted to plead guilty. “Yes,” Bergdahl replied, and the judge accepted the pleas.

(emphasis added).

Story here.

Army Sgt. Bowe Bergdahl is expected to plead guilty soon to desertion and misbehavior before the enemy rather than face trial for leaving his Afghanistan post.

That’s according to two individuals with knowledge of the case.

They tell The Associated Press that Bergdahl will submit the plea later this month and sentencing will start Oct. 23. The individuals weren’t authorized to discuss the case and demanded anonymity.

Two months ago I noted that Bergdahl elected trial by a military judge alone, and I commented that the choice was a “preface to a guilty plea.”

Thanks to our reader for the tip.

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.

Read more »

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).