Bowe Bergdahl Throws Hail Mary to Stay out of Prison After His Trump Gambit Fails

Army Sergeant Bowe Bergdahl has fallen from a great height. He’s gone from his parents being feted in a Rose Garden ceremony by Barack Obama (simulcast in Pashto, it seemed at times)

and inveterate and habitual liar Susan Rice saying he served with “honor and distinction”

to facing a very, very, very long prison term.

If you recall, back in July I posted on a lot of bad news that Bergdahl received. A military judge ruled he could be tried for on charges under Article 99, UCMJ, or ‘misbehavior before the enemy.’ The second bad news he received was that, if convicted, the court would hear testimony from two men who were gravely wounded in the search for Bergdahl.

The gravity of the situation has apparently hit Bergdahl and his defense team:

Army Sgt. Bowe Bergdahl has decided be to tried by a judge — not a military jury — on charges that he endangered comrades by walking off his post in Afghanistan.

Bergdahl’s lawyers told the court in a brief filing last week that their client chose trial by judge alone, rather than a panel of officers. He faces charges of desertion and misbehavior before the enemy at his trial scheduled for late October at Fort Bragg. The latter carries a maximum sentence of life in prison.

The defense is trying to blame the decision on Trump:

Earlier this year the judge, Army Col. Jeffery R. Nance rejected a defense request to dismiss the case over Trump’s criticism of Bergdahl.

Potential jurors had already received a questionnaire including questions about their commander in chief, but defense attorneys weren’t allowed to ask jurors if they voted for Trump.

Rachel VanLandingham, a former Air Force lawyer not involved in the case, said defense attorneys likely felt limited in how they could probe juror opinions.

“They lost their ability to ask all the questions they wanted to ask, one of those being: ‘Did you vote for President Trump?’” said VanLandingham, who teaches at Southwestern Law School in Los Angeles. “They felt that was very important … for fleshing out whether a panel member could be fair.”

But the real reason is much more banal and self interested.

A military court martial panel consist of at least five and as many as twelve persons. All of the members of the panel must outrank the accused. If the accused is an enlisted person they have the right to demand that a third of the panel be composed of enlisted personnel who are senior to them in grade. The reality facing Bergdahl was that once his stink bomb about “command influence” was laughed out of court, he was going to be tried by officers and noncommissioned officers with combat tours in Iraq and Afghanistan. The other nuance of the military justice system that is driving Bergdahl’s decision is that the default of a court-martial is “maintaining good order and discipline.” Anyone who has been in long enough to be selected to serve on a court-martial panel (I’ve done so twice in addition to being a member of the “parole board” for prisoners at the US Army Disciplinary Barracks at Fort Leavenworth, KS) knows that court-martials are time and labor intensive and that no one does them unless there is something very wrong involved. As a panel member you approach the job diligently but the thought in the back of your mind is always not “if” but “how much.” The fact that a guy who received presidential recognition when he was released is now pending general court-martial is not lost on anyone because everyone knows the easy way out was to give him an administrative discharge and forget about him.

In short, a court-martial panel is going to cut Bergdahl zero slack. His pathetic press friendly story of leaving his unit to walk through Taliban infested countryside to report “misconduct” is not going to wash. When two guys who had their military careers ended while searching for him testify in the sentencing phase, a panel is going to give him life and then give each other high fives after the trial adjourns.

Bergdahl’s last and best hope for ever setting foot outside a military prison again is being tried by a single military judge. That’s why he made the choice. Not Trump.

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