Justice Department Fights to Reinstate Bowe Bergdahl’s Court-Martial Conviction

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September 26, 2023
Bowe Bergdahl leaves the Fort Bragg courtroom

The Justice Department is fighting a federal judge’s decision to dismiss the court-martial sentence of former Staff Sgt. Bowe Bergdahl, asking the U.S. District Court of Washington to “leave intact the orders of the military courts.”

Bergdahl’s conviction and sentence, which included a dishonorable discharge, monetary fine and demotion to private, should be preserved, the Justice Department has argued in court filings.

Bergdahl’s attorneys have also asked in court that the decision handed down by Senior Judge Reggie Walton on July 25 be altered or amended.

In July, Walton ruled in favor of Bergdahl’s argument that the military judge in his case failed to disclose a potential conflict of interest, and then Walton vacated all orders and rulings issued by the judge, Col. Jeffery Nance, when Bergdahl pleaded guilty in 2017 to charges of desertion and misbehavior before the enemy.

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Bergdahl’s attorneys have asked Walton to reconsider a ruling that there was no unlawful command influence by former President Donald Trump — in light of his ruling that the Army judge in Bergdahl’s court-martial failed to disclose a potential conflict of interest.

Nance was asked on Oct. 17, 2017, when Bergdahl pleaded guilty whether he had any reasons why he might not be impartial in the case. He said at the time that he was a “terminal colonel” and that he wasn’t heading anywhere but “to retirement pastures.”

But Nance had, in fact, just applied for a position as a federal immigration judge.

Bergdahl, a former member of 1st Battalion, 501st Regiment, walked away from his post in Afghanistan in 2009 and was captured by the Taliban, triggering a military search. He was held captive for five years before being released in a prisoner swap for five U.S. detainees at Guantanamo Bay, Cuba.

In 2021, the Court of Appeals for the Armed Forces upheld Bergdahl’s court-martial and conviction on charges of desertion and misbehavior before the enemy.

The following year, Bergdahl filed a suit in civilian court arguing he was denied a fair trial as a result of his judge’s failure to disclose future employment aspirations as an immigration judge in the Trump administration. He also alleged that the case was influenced unlawfully by Trump and the late Sen. John McCain, R-Ariz., who both made public disparaging remarks about him prior to the proceedings.

In July, Walton ruled that no unlawful command influence had taken place, but he upheld Bergdahl’s argument that Nance failed to disclose the potential. In his decision, Walton heavily cited as precedent a case in Guantanamo Bay, Cuba, in which a military judge also failed to disclose his application for a civilian immigration judicial post.

In their argument to uphold Bergdahl’s court-martial, Justice Department attorneys argued that the Guantanamo case, which resulted in that judge’s decisions across four years being voided, was nothing like the Bergdahl case and instead should be held to different standards.

The department claims that Bergdahl pleaded guilty and requested his sentence, and that the case had come to its rightful conclusion in a trusted court of law — the military court system.

Bergdahl’s attorneys are arguing that the unlawful command influence issue be reconsidered, because Nance misled him by claiming he was unaffected by any comments by senior officials, including Trump, raising the question as to whether he could have been counted on to rule impartially as a result of his pending job application.

The Justice Department also has asked that if Walton decides to uphold his decision to vacate Bergdahl’s conviction, that he clarify that the case be allowed to be sent back to the military court system for another court-martial.

Bergdahl’s attorneys argued against the request, noting Bergdahl has been a civilian for more than two years, endured 14 years of his legal case and five years of brutality in captivity of the Taliban.

“At the moment, he stands convicted in the court of public opinion, out of the mouth of the President of the United States, as a traitor — the uniquely infamous category that includes Tokyo Rose, Axis Sally, and a handful of other turncoats over the course of American history. This is tremendously unfair,” his attorneys wrote in court documents.

Given the complexity of the case, a decision by Walton is not expected for months.

— Patricia Kime can be reached at Patricia.Kime@Military.com.

Related: Veterans in Congress Press for Bowe Bergdahl to Be Retried After Sentenced Was Dismissed

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