Gen. Robert Abrams leaves the courtroom facility after testifying at a preliminary motions hearing in the Sgt. Bowe Bergdahl court-martial on Wednesday, Aug. 24, 2016, on Fort Bragg, N.C. (Andrew Craft/The Fayetteville Observer via AP)
WASHINGTON — Gen. Robert Abrams will remain in charge of accused Army deserter Sgt. Bowe Bergdahl’s court-martial, a military judge ruled, rejecting defense attorneys’ claims he should be disqualified.
The judge, Army Col. Jeffery R. Nance, determined that Abrams was not personally involved in efforts to recover the former Taliban captive nor did he destroy any evidence related to the case, according to his ruling filed Friday.
In August, Bergdahl’s defense attorneys filed a motion asking Nance to remove Abrams, the chief of Army Forces Command, from his role as convening authority, the top official who oversees court-martial proceedings. The lawyers claimed Abrams could be called as a fact witness in the case because he had been involved in efforts to recover Bergdahl in previous military jobs. They also alleged the general destroyed about 100 letters he received related to the case that could have been admitted to the court as evidence.
“Nothing about Gen. Abrams['] involvement in this matter to date disqualifies him in any way from serving in the capacity of convening authority in this case,” Nance wrote in his ruling, noting Abrams had “no personal knowledge of the facts of the case,” and “he has not destroyed evidence.”
If Bergdahl’s attorneys had been successful in removing Abrams from his role as convening authority it would have reset the case by vacating Abrams' decision to send it to a felony-level general court-martial. Abrams’ decision went against the recommendations made by the officer who oversaw a preliminary hearing in Bergdahl’s case and advised it be sent to a misdemeanor-level special court-martial.
Bergdahl’s court-martial is scheduled to begin in February at Fort Bragg, N.C. The soldier has not yet entered a plea.
Nance’s decision on Abrams came down just days after the judge ruled he would not dismiss the case over comments made by Sen. John McCain, R-Ariz., which Bergdahl’s attorneys said violated their client’s right to due process.
Bergdahl’s civilian attorney Eugene Fidell said Monday he would file an appeal with the Army Court of Criminal Appeals, because they “believe the decision on McCain was incorrect.” He declined to comment on Nance’s ruling about Abrams.
During a pretrial hearing at Fort Bragg in August, Nance summoned Abrams to testify about the allegations raised by Bergdahl’s lawyers.
The four-star general said his only involvement in Bergdahl’s case before his role as convening authority was advising then-Defense Secretary Chuck Hagel that the military plan to recover the soldier from the Taliban in March 2014 was sound. He also said the letters he received from the public contained no firsthand knowledge of the case, and he consulted his staff judge advocate before placing them in a burn bag.
He also testified that he has taken his role as convening authority seriously and that he would “ensure Sgt. Bergdahl receives a fair trial.”
Nance wrote in his ruling that Abrams “testified plainly” and “convincingly” that he was qualified to remain in charge of the case.
Bergdahl, 30, remains on active duty, serving in a clerical position at Joint Base San Antonio in Texas.
He faces charges of “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty.” The more serious misbehavior charge carries a potential life sentence.
The soldier admitted to Army investigators he walked off his post in eastern Afghanistan in June 2009. He has said he had no intention of deserting the Army, but he wanted to cause a disturbance that would place him in front of senior leaders to air complaints about his chain of command.
He was captured by Taliban fighters within hours of leaving Observation Post Mest and spent five years in captivity in Pakistan before he was released in a controversial swap for five senior Taliban leaders who had been held at the detention facility at Guantanamo Bay in Cuba.
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