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Court considers request to throw out Bergdahl conviction over Trump 'traitor' comments

Bowe Bergdahl, demoted from sergeant to private and given a dishonorable discharge, is driven away from the Fort Bragg, N.C., court facility on Friday, Nov. 3, 2017. Bergdahl, who walked off his base in Afghanistan in 2009 and was held by the Taliban for five years, was spared a prison sentence.

ANDREW CRAFT /THE FAYETTEVILLE OBSERVER/AP

By COREY DICKSTEIN | STARS AND STRIPES Published: July 1, 2019

WASHINGTON — Military appellate judges are considering a request to dismiss the convictions of former Army Sgt. Bowe Bergdahl, a one-time Taliban captive who in 2017 pleaded guilty to charges that he deserted his post in Afghanistan and endangered his fellow troops.

The U.S. Army Court for Criminal Appeals is considering whether Bergdahl’s convictions should be thrown out over repeated, disparaging comments issued by President Donald Trump on the campaign trail, after he took office and since the soldier’s sentencing Nov. 3, 2017. A three-judge panel heard oral arguments about the case Thursday.

In 2017, at the conclusion of more than one week of testimony following Bergdahl’s decision to plead guilty, the soldier was sentenced to forfeit $10,000 in pay, a reduction in rank to E-1 private and a dishonorable discharge.

Trump condemned the lack of prison time for Bergdahl within two hours of the sentence decision in a Fort Bragg, N.C., court room by Army Col. Jeffery R. Nance, the military judge who has since retired from the service. The president routinely derided Bergdahl during his election campaign as a “dirty, rotten traitor” who “should be shot” or returned to the Taliban in front of cheering crowds.

“The decision on Sgt. Bergdahl is a complete and total disgrace to our country and to our military,” Trump tweeted Nov. 3, 2017. The president again took to Twitter on April 26, calling Bergdahl “a traitor” as he denied media reports that his administration paid money to North Korea to release American Otto Warmbier, who had been imprisoned by Pyongyang and died shortly after he was released to the United States in June 2017.

Bergdahl’s civilian attorney, Eugene Fidell, has long sought to have the charges — and now the convictions — against his client dismissed over Trump’s comments, arguing they amount to unlawful command influence. In the hours of Trump’s inauguration, Fidell charged Bergdahl could not receive a fair trial in the military because everyone in the service falls under the president’s command and could be influenced by his comments. Fidell on Monday declined to comment on the appeal, which was triggered automatically by the punitive discharge in Bergdahl’s sentence.

The appellate judges now considering Bergdahl’s case must decide whether “the president can unlawfully influence … a court-martial the president did not personally convene” and if Bergdahl’s lawyers have presented evidence of unlawful influence, according to court documents. They also must consider whether prosecutors had proven “beyond a reasonable doubt” that any perception of unlawful command influence in the case had not impacted the public’s confidence in the military justice system or cast doubts about Bergdahl’s ability to receive a fair outcome, the documents state.

It was not clear Monday when the judges would issue a decision on the case.

A lawyer representing the Army at the hearing Thursday at Fort Belvoir in Virginia argued the judges should take no action. Bergdahl “got what he asked for,” Army lawyer Maj. Catharine Parnell argued, according to Military.com. Prior to sentencing, Bergdahl’s attorneys had suggested Nance sentence him to no jail time and a dishonorable discharge. Prosecutors had sought 14 years imprisonment.

Nance has never publicly acknowledged the reasoning for his decision to spare Bergdahl jail time. In the days before he sentenced Bergdahl, Nance issued a ruling declining to throw out the case over Trump’s comments. The judge called the president’s comments “conclusory, condemning and disparaging,” but he said they ultimately did not influence his decisions in the case. He did rule that he would consider the comments as mitigating evidence in Bergdahl’s sentence, but it remains unclear how much he weighed them in his final decision.

Bergdahl, 33, admitted in court that he left Observation Post Mest in eastern Afghanistan’s Paktika province June 30, 2009 in an attempt to walk to a larger base where he said he wanted to alert military brass of problems that he perceived within his chain of command. Instead, he was captured by Taliban insurgents within hours of leaving his post and eventually smuggled into Pakistan where he was held and tortured by Taliban-linked Haqqani Network terrorists for five years.

In 2014, he was freed in a controversial prisoner swap for five former Taliban commanders who had been held at the U.S. Detention Center at Guantanamo Bay in Cuba since 2001. The exchange, conducted by former President Barack Obama’s administration without the approval of Congress, immediately drew the ire of congressional Republicans.

In court, evidence showed at least three servicemembers were severely wounded during operations to recover Bergdahl in the weeks after his disappearance.

dickstein.corey@stripes.com
Twitter: @CDicksteinDC

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