Judge Refuses To Dismiss Most Serious Charge Against Bergdahl

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I think we all remember that day when then President Obama honored the deserter Sgt. Bowe Bergdahl at the White House. I don’t know about you, but as far as I was concerned, it was another embarrassing moment. Obama screwed up.

Obama traded 5 Taliban prisoners for this so called soldier who served with “honor and distinction”.

You may even recall what Bill Kristol said,

“There’s a lot of reporting that he wasn’t taken in battle. He seems to have deserted or at least gone AWOL. He may have cooperated with the enemy after they captured him. Soldiers have died trying to find him. His own platoon and his own battalion, company and battalion, seem to have come under a lot more attacks after he was taken. The degree of anger amongst soldiers, on email and on listservs, is unbelievable. And that needs to be taken seriously.”

H/T Western Journalism:

Despite efforts by his defense attorneys to have the charge dropped, Army Sgt. Bowe Bergdahl will face the rare charge of misbehavior before the enemy — which carries a possible life sentence — when he faces his court-martial in October.

The charge is levied against a solider who endangers his comrades.

In 2009, Bergdahl walked off his post in Afghanistan. Bergdahl then spent five years as a captive held by the Taliban. Bergdahl was freed in a controversial May 2014 prisoner swap that included five Taliban leaders being released from the U.S. military prison at Guantanamo Bay, Cuba.

Col. Jeffery Nance, the judge in the case, rejected arguments by the defense that the charge of misbehavior should be dropped, while admitting that case law on the charge is scarce.


The defense said that crime was more serious than warranted.

“There is simply no way the accused could not reasonably have understood that his conduct was proscribed,” Nance wrote.

The government avers that the accused left his combat outpost intentionally, without authority and for the purpose of causing search and recovery operations, which he ultimately did cause. How could such alleged conduct be characterized as anything other than misconduct under any definition of the word?” he wrote

Bergdahl is charged 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.” The desertion charge carries a maximum sentence of five years in prison.

Nance also ruled this week that evidence of injuries to those who searched for Bergdahl can be used in the sentencing phase of Bergdahl’s court-martial. He would not allow that evidence to be used in determining Bergdahl’s guilt or innocence because it might trigger a verdict based on emotion and not the facts.

Sgt. 1st Class Mark Allen and retired Senior Chief Petty Officer James Hatch, a Navy SEAL, were both injured while searching for Bergdahl.

“Neither Allen nor Hatch would have been where they were doing what they were doing but for the actions of the accused, assuming he is found guilty of (misbehavior before the enemy),” Nance wrote.

Scores of military members searched for Bergdahl, who was captured within hours and would be held captive by the Taliban and its allies for five years.

The former Navy SEAL, retired Senior Chief Petty Officer James Hatch, suffered a career-ending leg wound when he was sprayed with AK-47 fire while chasing enemy fighters on a July 2009 search mission. He testified he nearly bled to death and has endured 18 surgeries since then.

On a separate search mission that month, U.S. Army National Guard Sgt. First Class Mark Allen was shot in the head, suffering a traumatic brain injury that left him in a wheel chair and unable to communicate.

Bergdahl has said he left his unit to illustrate a leadership failure endangering the lives of the soldiers with whom he served.

“All I was seeing was basically leadership failure to the point that the lives of the guys standing next me to were literally, from what I could see, in danger of something seriously going wrong, and somebody being killed,” Bergdahl said, claiming he had devised a plan to hike 18 miles to a different Army base, where he would state his concerns.

“I was fully confident that when someone took a look at the situation … that people would understand that I was right. What was going on was a danger to the lives of the men of that company,” Bergdahl said.

FILE – This file image provided by IntelCenter on Dec. 8, 2010,  (AP Photo/IntelCenter, File) MANDATORY CREDIT: INTELCENTER

Defense attorneys wanted the misbehavior charge thrown out, arguing that the underlying actions weren’t independently criminal and that the sentence could be overly harsh.

But Nance sided with prosecutors who argued that Bergdahl’s decision to leave his post was criminal enough to trigger the more serious charge. Military members must hold to a high standard of discipline to maintain order on the battlefield, and serving as a soldier isn’t like most other jobs, he reasoned in a separate ruling this week.

“Unlike the recalcitrant Wal-Mart employee, a service member really can earn himself a federal criminal conviction for repeatedly being late to work,” Nance wrote.

The misbehavior charge has rarely been used in recent decades, though there were hundreds of cases during World War II. Legal databases and media accounts turn up only a few misbehavior cases since 2001, when fighting began in Afghanistan. Nance found only a few relevant cases — one from the Korean War, the other from Vietnam, as precedents for the charge against Bergdahl.

“Two ancient cases are all that are available of superior court guidance as to the meaning of these words,” Nance wrote.

A legal scholar not involved in the case, former Army lawyer Eric Carpenter, said the Nance’s decision to allow evidence about his searchers’ injuries would give prosecutors a strong hand at sentencing.

Carpenter, who teaches at Florida International University, said the issue required careful attention because military jurors “might severely punish Bergdahl for second and third order effects of what he did, rather than focusing on his blameworthiness for leaving his post.”

Of course, the military probe didn’t begin until after Bergdahl was released on May 31, 2014. We all know that Obama jeopardized our nation’s security in the trade by releasing 5 Taliban prisoners in exchange for the deserter, Bergdahl.  Who by the way was later “honored” at the White House by Obama and his administration.

That’s right! The Obama administration and specifically, his National Security Adviser, Susan Rice said, that Bowe Bergdahl,

“served the United States with honor and distinction” and that “Sergeant Bergdahl wasn’t simply a hostage; he was an American prisoner of war captured on the battlefield.”

As Bill Kristol once stated,

“It’s one thing to trade terrorists for a real POW, someone who was taken on the battlefield fighting honorably for our country. It’s another thing to trade away 5 high-ranking terrorists to someone who walked away.”

Obama’s soldier who allegedly “served with honor and distinction” now may serve a LIFE SENTENCE!

This is all just part of one big MESS, that President Trump is dealing with as he continues to “Drain the Swamp” in Washington.

As far as I am concerned, there are 8 very good reasons to send Bergdahl to prison.

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