Prosecutors recommend 14 years in prison for Bergdahl; judge could decide sentence Friday
By COREY DICKSTEIN | STARS AND STRIPES Published: November 2, 2017
FORT BRAGG, N.C. — Army prosecutors on Thursday recommended Sgt. Bowe Bergdahl, who was held captive by the Taliban for years after walking off his post in Afghanistan, serve 14 years in a military prison for deserting and endangering his fellow troops.
However, defense attorneys recommended Bergdahl receive no jail time, but instead they suggested the judge hand him a dishonorable discharge, arguing the soldier faced enough punishment at the hands of Taliban-linked Haqqani militants in Pakistan during his five years of captivity.
The judge overseeing Bergdahl’s case, Army Col. Jeffery R. Nance, indicated in his courtroom at Fort Bragg on Thursday that he could determine the soldier’s fate by Friday but promised to spend hours deliberating.
In closing arguments of a sentence hearing Thursday, Maj. Justin C. Oshana, the lead prosecutor, argued despite Bergdahl’s suffering, which included beatings, long-term isolation in a small cage and subjection to videos of beheadings, he deserves to be further punished for his actions that led to massive search operations across eastern Afghanistan. In addition to prison, Oshana recommended Nance hand down a punitive discharge and reduce Bergdahl in rank to E-1 private.
Army Capt. Nina Banks, in closing arguments for the defense, countered that Bergdahl’s documented mental health conditions precluded him from understanding the chain of events that would transpire after he walked off his post, a decision she called a “horrible mistake” for which he has already suffered and apologized.
“Justice is not rescuing Sgt. Bergdahl from his Taliban captors and the cage he spent years inside only to place him in a cell,” she said.
Bergdahl pleaded guilty to desertion and misbehavior before the enemy charges, admitting leaving his post endangered his fellow troops. He faces a maximum punishment up to life imprisonment, reduction in rank to private, forfeiture of all pay and a dishonorable discharge.
Nance is not bound by prosecution or defense sentence recommendations and is free to hand down any punishment up to the maximum sentence, said Eric Carpenter, a former Army defense attorney and prosecutor who teaches law at Florida International University.
“It’s not unusual for a military judge to come in with a sentence above what the government recommended,” he said. “And sometimes it can be less than the defense recommendation.”
The defense recommendation of a dishonorable discharge would bar Bergdahl from receiving any medical benefits entitled to most veterans. A bad conduct discharge, the other possible punitive discharge, would require Bergdahl to appeal to the Department of Veterans Affairs for any medical benefits.
Bergdahl’s decision to walk of Observation Post Mest on June 30, 2009 impacted hundreds of troops who, in many cases, spent weeks searching for signs of his location, Oshana said. And for three servicemembers, he argued, the soldier’s decision was life-changing when they suffered career-ending injuries on missions that would not have been launched had Bergdahl not deserted.
“Sgt. Bergdahl does not have a monopoly on suffering as a result of his choices,” the prosecutor told Nance on Thursday, more than one week after the sentence hearing began. “The difference is all of the [other] suffering stems from his choice.”
Former Navy SEAL Senior Chief Petty Officer Jimmy Hatch, then-Army Spc. Jonathan Morita and retired Army Master Sgt. Mark Allen were all shot on operations about a week after Bergdahl disappeared from his post in Paktika province. Allen, who was shot in the head, was left permanently paralyzed and unable to speak.
Oshana contrasted Allen’s condition with Bergdahl’s. Both have suffered from bed sores and immobility — Allen as the result of his gunshot wound and multiple surgeries including the removal of portions of his brain, and Bergdahl’s as a result of the Taliban restraining him in positions from which he could not move for months at a time, he said.
They’ve both suffered pain, Oshana added.
“Mark Allen is in pain all of the time,” the prosecutor said. “The only difference is that Sgt. Bergdahl can tell someone where his pain is — Master Sgt. Allen cannot.”
But defense attorneys said Bergdahl is not to blame for Allen’s condition. Instead, Banks argued Thursday, Allen’s injuries, like Bergdahl’s own, were caused by the Taliban and should be kept in perspective for sentencing.
“[Bergdahl] is apologetic and remorseful for those servicemembers’ injuries,” she said. “We don’t have a situation here where there is malice and ill-will. The same enemy that held captive and tortured Sgt. Bergdahl for five years is responsible for those injuries.”
Defense attorneys have laid out their case showing Bergdahl has been cooperative with the government since the day that he returned to the United States. He was released from the Taliban in May 2014 in a controversial prisoner exchange for five Taliban commanders who had been held at the detention facility at Guantanamo Bay in Cuba.
Defense witnesses testified he has provided the intelligence community valuable information about the Haqqani’s captor network and helped the Pentagon’s Joint Personnel Recovery Agency update their policies for Afghanistan.
Additionally, Banks said in her statement that Bergdahl has faced humiliation back in the United States, as a regular subject of negative campaign trail statements by President Donald Trump. Nance has said he would consider Trump’s campaign statements, which the president seemed to endorse recently, when handing down Bergdahl’s sentence.
“Sgt. Bergdahl has been punished enough,” Banks said. “Sgt. Bergdahl paid a bitter price for the choices that he made.”