Bergdahl not on Obama’s December pardon list
By COREY DICKSTEIN | STARS AND STRIPES Published: December 20, 2016
WASHINGTON — President Barack Obama has granted 78 people pre-Christmas pardons, more than doubling the amount allowed during his eight-year tenure. But accused Army deserter Sgt. Bowe Bergdahl was not among them.
The White House announced the pardons Monday afternoon alongside Obama’s decision to commute the sentences of 153 other individuals. White House Counsel Neil Eggleston left the door open for additional pardons in Obama’s remaining month in office, perhaps leaving hope for Bergdahl that the president will grant his pardon petition that would spare him a court-martial in April on charges of desertion and misbehavior before the enemy.
“The president continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the president will issue more grants of both commutations and pardons before he leaves office,” Eggleston wrote Monday in the statement.
The vast majority of the pardons granted Monday were to drug offenders who had already completed their sentences. None of the pardons were granted to individuals, like Bergdahl, who had not already been convicted of a crime, which is possible for a president to do but extremely rare.
Several experts on military law and pardon history have told Stars and Stripes that a pardon for Bergdahl is unlikely. The soldier’s lawyer Eugene Fidell declined to comment Tuesday on the pardon request.
White House Press Secretary Josh Earnest said recently that he did not expect Obama to grant pardons to any individuals whose applications had not yet undergone the normal vetting process, which can take several years.
Bergdahl, 30, spent five years as a Taliban prisoner after he walked off his base in eastern Afghanistan in June 2009. He was returned to the U.S. military in May 2014 in a controversial exchange approved by Obama for five senior Taliban leaders who had been held in the detention facility at Guantanamo Bay in Cuba.
Last year, the Army charged Bergdahl with “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.
Berghdal’s trial is scheduled to begin April 18. Last week, the judge overseeing the court-martial barred prosecutors from presenting evidence at that trial of specific injuries to servicemembers wounded while searching for Bergdahl in the days after he disappeared from Observation Post Mest.
Prosecutors had hoped to include evidence that two Army National Guardsmen were injured – one permanently disabled by a gunshot to the head – during a mission to recover Bergdahl. Army Maj. Justin C. Oshana, the lead prosecutor, said the injuries best represented Bergdahl’s guilt of the misbehavior charge.
The judge, Army Col. Jeffery R. Nance, disagreed. In his ruling on the evidence, he wrote prosecutors had plenty of additional evidence that showed troops were endangered by Bergdahl’s actions. Including evidence of the soldiers’ injuries at trial was the prosecution’s attempt to “seal-the-deal,” he wrote. But it could unfairly bias the jurors to act on their emotions, Nance concluded.
“The accused is not charged with causing anyone’s injury or death,” the judge wrote. “He is charged with endangering the command. While there are similarities in those consequences, they are distinct.”
Fidell said he was pleased with the judge’s ruling.
Bergdahl has yet to enter a plea to either of the charges against him nor has he decided whether he will face a jury trial or leave his fate to Nance. He remains on active duty in a desk job at Joint Base San Antonio in Texas and has not been subjected to any pre-trial confinement.