Federal appeals court reinstates Bowe Bergdahl’s desertion, misbehavior convictions

A federal appeals court has reinstated former Army sergeant and Taliban captive Bowe Bergdahl’s conviction for desertion and misbehavior, overturning a ruling three years ago by a civilian federal court.

Only the military appellate system or Supreme Court can vacate a court-martial judgment, according to Monday’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit.

The ruling sends the case back to the U.S. District Court, where Bergdahl moved to vacate his conviction, in part by questioning the impartiality of the military judge who sentenced him.

Bergdahl was a 23-year-old private when he walked away from his post in eastern Afghanistan in 2009. He was captured by the Haqqani network of militants linked to the Taliban and held five years before his release in a controversial prisoner exchange. Bergdahl was exchanged for five Taliban commanders held at Guantanamo Bay, Cuba.

Bergdahl was subsequently charged under the Uniform Code of Military Justice with desertion with intent to shirk hazardous duty and misbehavior before the enemy. He pleaded guilty and the presiding judge — then-Col. Jeffrey Nance — sentenced Bergdahl to a dishonorable discharge, loss of pay and reduction in rank from E-5 to E-1.

In July 2023, U.S. District Court Judge Reggie Walton overturned Bergdahl’s conviction in a 63-page ruling that cited Nance’s failure to disclose that he sought an appointment as a civilian immigration judge after his military retirement. A “reasonable person” would question Nance’s impartiality, according to Walton’s ruling.

The Justice Department appealed, arguing Bergdahl’s sentence was consistent with what he requested, not the 14 years in prison that prosecutors had asked for, in exchange for his guilty plea.

Nance had appeared to disregard disparaging statements about Bergdahl by candidate and then-President Donald Trump and was not attempting to win favor with the administration, prosecutors stated in their briefs.

During a hearing on Oct. 23, 2017, Nance answered questions from Bergdahl’s lawyers regarding the impact of Trump’s statements in the White House Rose Garden the day Bergdahl was sentenced a week earlier, according to the appellate ruling Monday.

Nance also applied that day for a post as an immigration judge.

Trump, who in January 2017 called Bergdahl a “bum” and a “whack job,” said on Oct. 16 of that year that he could not comment further because “they’re setting up sentencing” and “people have heard my comments in the past,” the ruling states.

The appellate panel ruled that civilian federal courts, or those created by Congress under Article 3 of the Constitution, lack direct-review authority over court-martial judgments. Civilian appellate courts have limited authority in military cases, but no authority to vacate an underlying military judgment, according to the ruling.

“The case presents nuanced questions regarding jurisdiction and the evolving relationship between Article III courts and military courts,” said the decision signed by Judge Robert Wilkins.

The appellate ruling sends the case back to the district court “to dismiss for lack of jurisdiction.”