Justice Department seeks reinstatement of Bowe Bergdahl’s court-martial conviction
Stars and Stripes September 26, 2023
Federal prosecutors asked a judge to reinstate the 2017 court-martial conviction of former Army soldier and Taliban captive Bowe Bergdahl, arguing a civilian federal judge wrongly dismissed the sentence earlier this year.
Justice Department prosecutors asked U.S. District Judge Reggie Walton to “leave intact” Bergdahl’s November 2017 sentence, charging in recent court filings that Walton’s July decision to vacate the conviction relied on incorrect analysis of another case regarding a Guantanamo Bay detainee. The judge dismissed Bergdahl’s convictions on charges of desertion and misbehavior before the enemy — to which the former soldier had pleaded guilty — based on the failure of the military judge in Bergdahl’s case to disclose that he had applied for a job as a federal immigration judge just before the court-martial.
Walton, a judge with the U.S. District Court for Washington, issued a 63-page opinion July 25 that vacated decisions made by the military judge, then-Army Col. Jeffrey R. Nance, during the court-martial, including the sentence he imposed after a weeklong sentencing trial at Fort Bragg — now Fort Liberty — in North Carolina. Nance sentenced Bergdahl to a dishonorable discharge, loss of pay and reduction in rank from E-5 sergeant to E-1 private, sparing him any jail time.
Walton ruled “a reasonable person” would question Nance’s impartiality, given he was seeking a new civilian judgeship in the executive branch after his retirement from the military. Nance now holds that job in the Charlotte, N.C., Immigration Court. Walton left open the possibility that Bergdahl could be retried on the charges. But if a new trial was held, the former soldier could not face a penalty stiffer than his original sentence.
Bergdahl was a 23-year-old Army private when he walked off his post in eastern Afghanistan in 2009 and was captured and held for about five years by Taliban-linked militants in Pakistan. He was later released to the United States in a controversial prisoner exchange for five Taliban commanders who had been held in the detention facility at Guantanamo Bay in Cuba. Bergdahl testified he had aimed to walk to a larger military post to report problems that he perceived in his unit. Testimony at his trial showed U.S. soldiers spent weeks searching for him after his disappearance, and several American troops were severely wounded trying to find him.
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” in March 2015. Bergdahl’s case became especially politicized when former President Donald Trump, a candidate at the time, routinely mocked the soldier, labeling him “a traitor” during campaign speeches. Trump, as president, blasted Nance’s decision not to imprison Bergdahl as “a complete and total disgrace” within hours of the decision.
The Justice Department in the recent court filings argued Walton’s decision to vacate the sentence from Nance was based on wrongly equating the Bergdahl case to a 2019 decision in the case of a Guantanamo Bay detainee accused of masterminding the 2000 USS Cole attack. In that case, four years of orders by a judge were vacated because he failed to disclose he had applied for a job as a civilian immigration judge. The proceedings in that case were different than Bergdahl’s case, prosecutors argued, pointing out the decision in the Guantanamo case came long before a trial.
The prosecutors also argued Nance’s sentence appeared to consider Trump’s repeated attacks on Bergdahl, showing the judge was not attempting to curry favor with the president, whose attorney general would later appoint Nance to the immigration court. Nance could have sentenced Bergdahl to life imprisonment, and military prosecutors had sought a 14-year confinement.
“Here, the plaintiff received a sentence largely consistent with what he requested following his own guilty plea,” the Justice Department prosecutors wrote in August. “… Indeed, plaintiff requested his sentence of a dishonorable discharge.”
If Walton declines to reinstate Bergdahl’s sentence, the judge should allow a new court-martial in the case given the “Army’s and the public’s interest in the administration of justice, especially ‘given the government’s strong evidence in support of the plaintiff’s charges …; the seriousness of the charges …; and the extensive casualties that resulted from the plaintiff’s actions,’ ” the prosecutors wrote.
In a countermotion, Bergdahl’s lawyers asked Walton to go further and dismiss the conviction “with prejudice,” meaning it could not be retried in a new court-martial. Bergdahl “has been punished enough through nationwide adverse publicity and the sheer time the entire case has consumed since his five years in brutal Taliban captivity,” his attorneys wrote in a Sept. 22 court filing.
They argued Walton should grant the dismissal with prejudice to ensure the appearance of fairness because Nance repeatedly declined to throw out the case over Trump’s comments, which Bergdahl’s attorneys argued amounted to unlawful command influence. Nance’s decision could have been tainted by his plans to apply for the federal judgeship, Bergdahl’s lawyers argued.
“All this, along with the unprecedented actions of the nation’s highest elected official [Trump], and the passage of over two years since the plaintiff became a civilian, six years since his trial, nine years since the wheels of military justice began to turn, and over 14 years since the charged offenses, furnish a compelling basis for dismissing the charges with prejudice,” Bergdahl’s attorneys wrote.
It was unclear Tuesday when Walton could rule on Bergdahl’s case.