Military Judge Gives Bowe Bergdahl A Lot Of Bad News

I missed this in the tumult of the past week but good news is always welcome.

When Army Sergeant Bowe Bergdahl was released by the Taliban in 2014 he was feted by the Obama administration despite ample evidence that he was actually a deserter. His parent were guests at a Rose Garden ceremony with Obama, himself. Habitual and reflexive liar Susan Rice took to the Sunday shows to reprise her bravura performance after Benghazi, in this case she told a lie so monstrous that even CNN’s Jim Acosta, who never saw an Obama-related knob shoe he couldn’t polish, was shocked:

RICE: I realize there has been a lot of discussion and controversy around this. What I was referring to is the fact that this was a young man who volunteered to serve his country in uniform at a time of war. That in itself is a very honorable thing.

ACOSTA: But ‘honor and distinction?’

Because of the omelet sizzling on the face of Obama and Rice and others, there seemed to be an initial attempt to fix the case so Bergdahl could just go away.

An Army two-star who conducted a preliminary inquiry minimized Bergdahl’s actions and recommended against court-martial or imprisonment. (Yes, he was promoted.) The commander of US Forces Command disagreed and his legal office determined there was sufficient evidence to charge Bergdahl with one count of desertion and one count of misbehavior before the enemy. Both of which carry the possibility of life sentences.

The next step was an Article 32 hearing, which is the military equivalent of a grand jury but which is not a rubber stamp by any stretch of the imagination, but neither is it definite as it produces a recommendation not a decision. The Article 32 officer recommended that the charges be adjudicated via what is called a Special Court Martial. A Special Court Martial employs a military judge and a panel of three officers as a jury. This would have limited Bergdahl’s liability to 12 months confinement, forfeiture of two-thirds pay and allowances, and a bad conduct discharge, the latter does not deprive a soldier of all veterans benefits.

The four-star who has convening authority for courts-martial disapproved the recommendation for a Special Court and ordered that Bergdahl stand trial on the two charges and face a General Court Martial which can impose any sentence up to and including death.

Then the legal maneuvering started in earnest. Bergdahl asked Obama for a pardon and got nothing. Then his defense team started throwing stuff against the wall in hopes some of it would stick. They claimed unlawful command influence because candidate Donald Trump had called Bergdahl a traitor at least 65 different times. This gambit has been denied for the simple reason that the “unlawful command influence” has a specific meaning.

Another hearing was held in June before a military judge to decide if the charges were supported by the record or if they should be modified. Bergdahl’s team was really aiming to have the “misbehavior before the enemy” charge reduced or dropped altogether. If Bergdahl is tried on the misbehavior charge, whether or not he’s convicted of it, the evidence given to support that charge will ensure a court martial panel returns a really stiff sentence for desertion.

Last week, the military judge overseeing the trial rendered two adverse decisions. First, he decided that Bergdahl will stand trial on all charges. Most damaging, though, was his decision that if Bergdahl is convicted that the jury would be allowed to hear about the injuries suffered by an Navy SEAL and an Army NCO while specifically searching for Bergdahl.

Serious wounds to a soldier and a Navy SEAL who searched for Army Sgt. Bowe Bergdahl can be used at the sentencing phase of his upcoming trial, a judge ruled Friday, giving prosecutors significant leverage to pursue stiff punishment against the soldier.

The judge, Col. Jeffery Nance, ruled that the service members wouldn’t have wound up in the firefights that left them wounded if they hadn’t been searching for Bergdahl, so their injuries would be relevant to his sentencing if he’s convicted of misbehavior before the enemy at trial in October.

I suspect we are heading for a guilty plea and Bergdahl taking his chances with a military judge. Any court-martial panel Bergdahl draws will be composed of officers with combat tours. Bergdahl can demand that a third of his jury be composed of noncommissioned officers senior in rank to him–but he’d have to have a profoundly incompetent defense team for them to think that senior NCOs are going to be very sympathetic to his case.

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