Five military veterans in Congress have written Defense Secretary Lloyd Austin and Attorney General Merrick Garland asking they review options for retrying former Army Sgt. Bowe Bergdahl after his verdict was vacated last week by a civilian court.
Reps. Mike Waltz, R-Fla.; Dan Crenshaw, R-Texas; Jake Ellzey, R-Texas; Ryan Zinke, R-Mont.; and Guy Reschenthaler, R-Pa., demanded an immediate review of the case, saying the nullification of the sentence “dishonors those who served and died alongside Bergdahl.”
“Bergdahl’s actions endangered and potentially got his comrades killed,” they wrote. “By omission, condoning such behavior puts the lives of future American soldiers in peril.”
The former prisoner of war pleaded guilty in 2017 to desertion and misbehavior before the enemy, having left his post in Afghanistan in 2009, subsequently being captured by the Taliban and held for nearly five years.
Bergdahl received a dishonorable discharge, loss of rank to private, and forfeiture of $10,000 in pay.
His case was appealed through the military court system, which upheld the original verdict. After exhausting his options in that system, however, Bergdahl sued the United States in federal court.
Last week, U.S. District Court Senior Judge Reggie Walton vacated the sentence, dismissing the orders by the judge who presided over Bergdahl’s court-martial, Col. Jeffery Nance, after Nance failed to disclose that he had applied for a position as a federal immigration judge in the Trump administration — a job prospect that gave the appearance of a potential conflict of interest.
Following Walton’s order, neither Bergdahl’s attorneys nor the Justice Department would comment on the decision, but the dismissal sets up a number of legal possibilities, including an appeal or the possibility of a new court-martial in which Bergdahl could plead not guilty.
The lawmakers want Austin to work with Garland to determine the Defense Department’s options for a new trial.
Crenshaw, Ellzey and Waltz all deployed to Afghanistan. Waltz, who is chairman of the House Armed Services readiness subcommittee, is a former Special Forces officer who led teams in the search for Bergdahl and says in his professional bio that he has “continued to lead the call for justice on behalf of all the service-members Berghdal’s [sic] desertion put in harm’s way.”
In their letter, the lawmakers allege that as many as eight Americans died attempting to find Bergdahl, although a subsequent investigation by the Army found that no troop deaths could be directly attributed to the effort, with the exception of one soldier who died several years later from injuries he sustained during the search.
The lawmakers also noted that the search came at the height of the Afghanistan War, with “combat incidents rising rapidly and additional troops being deployed.”
In his decision, Judge Walton ruled in favor of the government in another of Bergdahl’s arguments for dismissal of his case — that then-President Donald Trump and Sen. John McCain, R-Ariz., exerted unlawful command influence by saying negative things about Bergdahl.
Given the split decision, both Bergdahl and the Justice Department have a right to appeal, which would take the case to the District of Columbia U.S. Court of Appeals.
— Patricia Kime can be reached at Patricia.Kime@Military.com.
