In a July 7, 2016 file photo, Sgt. Bowe Bergdahl, right, arrives with his military lawyer, Lt. Col. Franklin Rosenblatt, for a legal hearing at the courtroom facility, on Fort Bragg, N.C. (Andrew Craft/The Fayetteville Observer)
FORT BRAGG, N.C. — Army prosecutors told a military judge Friday that they only intend to present evidence that two specific servicemembers were wounded while searching for accused deserter Sgt. Bowe Bergdahl when he is court-martialed next year.
However, there is evidence other troops were injured while looking for Bergdahl after he walked off Observation Post Mest in eastern Afghanistan, lead prosecutor Army Maj. Justin C. Oshana told the judge, Army Col. Jeffery R. Nance, during a pre-trial hearing Friday at Fort Bragg in North Carolina. But prosecutors only plan to introduce documentation of injuries to National Guardsmen Sgt. 1st Class Mark Allen and Spc. Jonathan Morita, who were wounded in a firefight with the Taliban in June 2009 during a mission to find Bergdahl in the days after his disappearance.
Bergdahl, 30, has admitted he left his post without permission before he was captured and spent five years in Taliban captivity in Afghanistan. The Army has charged him 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.
Defense attorneys are seeking to bar prosecutors from presenting evidence of the injuries to Allen, who was permanently disabled by a gunshot to the head, and Morita, who suffered broken bones in his hand. Bergdahl’s disappearance was only one of many issues that led to their wounds, Army Maj. Oren Gleich, one of Bergdahl’s defense attorneys, argued Friday. He said poor and hasty planning of the operation was a larger factor in the incident.
Nance has yet to determine whether he will allow prosecutors to present evidence of the injuries at trial. He said he would rule on the issue “as soon as possible.”
Among his concerns, Nance said, is whether evidence that servicemembers were injured would be necessary for prosecutors to prove Bergdahl endangered his fellow troops, an important aspect of the misbehavior charge. He said prosecutors might only need to present evidence that a mission was planned to find Bergdahl that risked injury or death to servicemembers.
Prosecutors have “to be able to put in some evidence of endangerment,” Nance said. “The question for me is how far on the spectrum should they be able to go.”
Oshana described the injuries as “the best and most direct evidence that we have to prove” Bergdahl is guilty of the charge.
Prosecutors to date have made no mention in court of any deaths among servicemembers searching for Bergdahl. After the soldier was freed in a controversial swap for five senior Taliban leaders who had been held at the detention facility at Guantanamo Bay in Cuba in May 2014, several news reports cited former soldiers reporting five to seven servicemembers were killed looking for him. Those reports were later dispelled by former Secretary of Defense Chuck Hagel, who testified to lawmakers there was no evidence anyone had died in the search and rescue operations.
Also Friday, Nance declined to hear testimony from government officials responsible for reviewing massive caches of classified information, which have been the basis for delaying the start of the trial twice.
Nance had ordered government agencies still reviewing any classified information related to the case for potential national security concerns to provide an official to testify Friday. But the judge said he was pleased with the progress that the agencies had made in clearing most of the more than 1.3 million pages of classified information that must be vetted and provided to defense lawyers.
Oshana said prosecutors through Friday had turned over 26,739 documents to Bergdahl’s lawyers and were preparing to share 3,130 more documents in the coming weeks. But he also said he expected to receive another 3,500 documents from U.S. Central Command that could take additional time to vet.
The trial is scheduled to begin April 18, but Nance assured Bergdahl’s attorneys that they would have proper time to inspect the documents before the trial, thus leaving open the possibility it could be delayed further.
“I’m not going to let the government have 1.5 years to get these documents to you and then only give you two months to absorb and prepare your defense,” Nance said.
Bergdahl remains on active duty in a desk job at Joint Base San Antonio in Texas. He told Army investigators he left his post in order to cause a commotion that would put him in front of senior leaders to air grievances about his chain of command. He has yet to enter a plea to the charges against him.
Bergdahl is expected to return to court Feb. 13 for another pre-trial hearing, but Nance said it was possible he would schedule the next hearing sooner, on Jan. 23.
dickstein.corey@stripes.com Twitter: @CDicksteinDC
