SGT. Bowe Bergdahl and His Legal Team Today
(Photo in 2016)
SGT. Bowe Bergdahl and the Five Taliban U.S. Traded for His Release
(Photo in 2014)
Major update of the following previous post (follows this update) of this case:
RALEIGH, NC (AP) — President Donald Trump's campaign-trail condemnation of Army SGT. Bowe Bergdahl — charged with desertion while serving in Afghanistan — won't prevent the soldier from getting a fair trial say Army prosecutors.
Prosecutors are seeking to rebuff Bergdahl's assertion that Trump violated his constitutional rights to due process when, as a presidential contender, Trump called Bergdahl a traitor (see more on this below) and made other disparaging remarks.
Bergdahl will be tried in April on charges alleging that he put the lives of his fellow soldiers in jeopardy when he walked off his post in Afghanistan in 2009.
Even though Trump repeatedly suggested that Bergdahl should face stiff punishment, including being thrown out of a plane, prosecutors said in a court filing last week that any reasonable observer would understand that comments by the then-Republican contender amounted to campaign rhetoric and should not be taken literally, adding: “With regards to Mr. Trump's comments that SGT Bergdahl is a 'traitor' or committed 'treason,' such comments were clearly intended to be understood by their colloquial meaning. It strains credulity to believe that Mr. Trump was seriously suggesting that SGT. Bergdahl should be thrown out of an airplane.”
(I note: It may be hard to believe, except for Mr. Trump. I'm pretty sure he still believes it. Why not ask him and see).
Prosecutors also argue that the statements can't constitute unlawful command influence because they were made before Trump became president and because they were spread out among other campaign coverage.
(I note: Then by any logic, we have the right to know now what Mr. Trump's view since he is now the CINC).
However, Eric Carpenter, a former Army lawyer who teaches law at Florida International University, said that potential military jurors could be influenced by Trump's comments even if he made them before becoming president, concluding: “The prosecution is in a tough spot. These statements are really indefensible, and they have the job of defending them. No one in the administration has disavowed those comments, so the comments still have life.”
Defense attorneys have asked that charges be dismissed because of the Trump comments. Their motion, filed shortly after Trump was sworn in as president on January 20, cites more than 40 instances of Trump's criticism at public appearances and media interviews through August 2016. Defense attorneys also will argue that potential jurors may feel obligated to agree with their new leader and would have a hard time ignoring the criticism.
Defense lawyers wrote recently: “The government does not dispute that he made those statements, and while some of them may have been outlandish, taken as a whole they clearly indicate his view that the harshest possible penalties should be imposed.”
1. Bergdahl will be tried at Fort Bragg on charges of desertion and misbehavior before the enemy. The latter carries a maximum penalty of life in prison.
2. Bergdahl is from Idaho. He said he walked off his post to cause an alarm and draw attention to what he saw as problems with his unit.
The prosecutors said at the preliminary hearing, held at the military post in San Antonio where Bergdahl has been stationed since his return, that he launched a plan weeks in the making.
Prosecutors also said there was sufficient evidence to hold him for trial on charges of desertion and misbehavior before the enemy.
Major General Kenneth Dahl led the military's investigation of Bergdahl's disappearance and capture along with 22 others in the two-month investigation and interviewed Bergdahl for a day and a half. He testified at the hearing that Bergdahl was not a Taliban sympathizer and recommended that he serve no prison time as he characterized Bergdahl as an unrealistically idealistic soldier who left his post to report concerns about his unit's leadership to a general at another base, and then concludes: “I do not believe that there is a jail sentence at the end of this process.”
DETAILS and MORE BACKGROUND INFORMATION:
1. SGT. Bergdahl walked off his post in Afghanistan on June 30, 2009, and was captured by the Taliban and held for nearly five years.
2. Eugene Fidell, a military justice expert and a visiting lecturer at Yale Law School, complained about political figures who have made derogatory statements about Bergdahl. Fidell asked that GOP presidential candidate Donald Trump 'cease his prejudicial months-long campaign of defamation against our client'. Fidell previously has complained about Trump calling Bergdahl a traitor and should be executed.
3. Some in Congress had called for Mr. Obama to be impeached over the swap of 5 Taliban detainees for Bergdahl … those issues are related, but we never leave a soldier behind. Period – get the details, but not for political stunts.
4. Bergdahl’s intent was NOT to be captured or never return or come back to his unit after his mission to report poor leadership to a nearby General.
Article 85 UCMJ: Desertion. This is the most serious of the absentee offenses.
Remember the primary difference between AWOL and desertion is intent to remain away from the military permanently.
(1) If a member deserted, but voluntarily returned to military control: Dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for 2 years.
(2) If the member deserted and the desertion was terminated by apprehension: Dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for 3 years.
(3) If the member deserted with the intent to avoid hazardous duty or to shirk important service (and example of this would be a member ordered to deploy to Iraq and then deserts to avoid the deployment): Dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for 5 years.
(4) Most-critical part: If the member deserts during time of war: Death or such other punishment (such as life in prison) as a court-martial may direct.
The legal issue with #4 is this: The U.S. is not in an officially declared war and that is the most important aspect of desertion in this case I believe. War was never declared in Afghanistan or in Iraq ... we have tended to use the term war loosely.
Sgt. Bergdahl should get some punishment ... that is what the court will decide and not those who have shown prejudice against him already at a lot of high levels across government. That has tainted the case.
That too is a critical part ... even Trump called Sgt. Bergdahl a “traitor and said that he should be executed.” *Update clip from Trump here via FOX - astonishing - listen carefully to Trump's words:
... How pathetic is that prejudice for someone who wanted to be CINC (Note: And, now is the CINC)?
Also, many in this Congress has blasted the President for getting him freed from the Taliban. That will surely impact the outcome.
Related from September 7, 2015:
RALEIGH, NC (AP) — Military prosecutors have reached into a section of military law seldom used since World War II in the politically fraught case against Army Sgt. Bowe Bergdahl, the soldier held prisoner for years by the Taliban after leaving his post in Afghanistan.
Observers wondered for months if Bergdahl would be charged with desertion after the deal brokered by the U.S. to bring him home. He was — but he was also charged with misbehavior before the enemy, a much rarer offense that carries a stiffer potential penalty in this case.
“I've never seen it charged. (Said Walter Huffman, a retired major general who served as the Army's top lawyer, said of the misbehavior charge). “It's not something you find in common everyday practice in the military.”
Bergdahl could face a life sentence if convicted of the charge, which accuses him of endangering fellow soldiers when he “left without authority; and wrongfully caused search and recovery operations.” Huffman and others say the misbehavior charge allows authorities to allege that Bergdahl not only left his unit with one less soldier, but that his deliberate action put soldiers who searched for him in harm's way. The Pentagon has said there is no evidence anyone died searching for Bergdahl.
“You're able to say that what he did had a particular impact or put particular people at risk. It is less generic than just quitting.” (Said Lawrence Morris, a retired Army colonel who served as the branch's top prosecutor and top public defender).
The Obama administration has been criticized both for agreeing to release five Taliban operatives from the Guantanamo Bay prison and for heralding Bergdahl's return to the U.S. with an announcement in the White House Rose Garden. The administration stood by the way it secured his release even after the charges were announced.
For those at the time of the Bergdahl-Taliban swap who said or now more so say, “See we were right, Bergdahl did desert his unit in time of war.”
Okay, following that line of reason for a minute.
Let’s say for the sake of argument that we took their word that somehow they know and thus declare without any legal process BTW, that he did desert, then what? Just leave him with the Taliban based on opinion? How would anyone ever know the truth?
Suppose he did in fact desert, isn’t he entitled to a fair hearing and trial and punishment according to the UCMJ?
To leave a soldier in enemy hands for any reason and under any condition is not the American way, or is it in GOP “logic?” The GOP see, we told you so crowd always deals in opinion, speculation, and innuendo.
First let me say that everyone is entitled to their opinion on this subject or anything else for that matter – but they are entitled to disregard the facts. They cannot make up facts and substitute them for opinion and pass it off as right and just. Until this whole thing plays out legally with Sgt. Bergdahl, then just watch and see. It was the right thing to have done from the start with the swap for his release. Now we must let the military justice process play out, and we must insist on the stopping the political grandstanding.
Sgt. Bergdahl is having his day in court so to speak and that is the military way. All this political crap now is sickening, and as I said not unexpected, but still sad and pathetic. The swap for the soldier was correct no matter the results we see.
If we ever lose sight of recovering a missing or fallen soldier no matter the circumstances then as a nation, a people, we will have lost our way.
The swap deal was appropriate at the time it was made for the right reason. Now let the process play out while stopping the political jockeying. That aspect is both unseeingly and quite frankly un-American.
Thanks for stopping by... this is truly an astonishing story. Just watching the outcome and especially how Mr. Trump will react (tons of Tweets I am sure) is worth its weight in gold... stay tuned.