A federal judge has thrown out the military conviction of former Army Sgt. Bowe Bergdahl, who pleaded guilty to desertion after he left his post in Afghanistan and was captured by the Taliban.
In a ruling issued Tuesday, Washington District Judge Reggie Walton partially granted the federal government’s motion to dismiss the Bergdahl case, but ruled in favor of the former solder’s argument that the military judge who had ordered the dishonorable discharge had failed to disclose a possible conflict of interest.
Specifically, according to the ruling, Army Col. Jeffery Nance had not disclose that he had applied to be an immigration judge at the U.S. Department of Justice while presiding over the court-martial.
As a result of Tuesday’s decision, all orders and rulings issued by Col. Nance as of Oct. 16, 2017—the day Mr. Bergdahl pleaded guilty to charges of desertion and misbehavior before the enemy and the day Col. Nance applied for a job within the Justice Department—are now vacated, along with all subsequent decisions by appellate military courts in the case.
“He should have disclosed his job application as a potential ground for his disqualification,” Judge Walton wrote. “In reaching this conclusion, the court does not mean to opine that there was actual bias in this case or that the military judge’s orders were not the product of his considered and unbiased judgment. ... Rather, the facts in this case present an appearance of partiality and, while appearance may be all there is, that is enough.”
Judge Walton also acknowledged the fact that former President Donald Trump had repeatedly criticized Mr. Bergdahl during and after his 2016 presidential campaign. On the campaign trail, then-candidate Trump denounced the former soldier as a “dirty rotten traitor” who deserved death.
“Based upon the military judge’s job application to an executive branch position—a situation in which he might reasonably be expected to appeal to the president’s expressed interest in the plaintiff’s conviction and punishment,” Judge Walton wrote, adding that “a reasonable person knowing all the circumstances” would come to the conclusion that the military judge’s impartiality “was in jeopardy.”
“Consequently, the judgment of the military judge regarding the plaintiff’s court-martial is rendered void,” he wrote.
In June 2009, Mr. Bergdahl deserted his post in Afghanistan, in what he would later claim was a move to bring his unit’s problems to the attention of senior Army officials. He was captured by the Taliban and held for five years, setting off a massive search-and-rescue operation that involved hundreds of U.S. troops. Five service members were injured during the mission, including Master Sgt. Mark Allen who was left paralyzed by a gunshot wound in his head until his death in 2019.
In 2014, the Obama administration released from Guantanamo Bay five members of the Taliban in exchange for Mr. Bergdahl’s repatriation. It is reported that four of the so-called “Guantanamo Five” are now part of the country’s new radical Islamist government.
Mr. Bergdahl pleaded guilty in 2017 to all charges of desertion and misbehavior before the enemy and requested a dishonorable discharge to avoid prison time. As part of the sentence, he was also ordered to forfeit his pay of $10,000, with his rank reduced to private.
President Donald Trump strongly disagreed with the punishment, calling the decision “a complete and total disgrace to our country and to our military.”
He appealed his case through the military court system, alleging that Mr. Trump and the late Sen. John McCain (R-Ariz.) exerted unlawful command influence in the case by making condemning comments and statements about him and how he should be penalized. Judges of the Armed Forces appeals courts have dismissed such arguments.
Judge Walton also found the undue influence argument unconvincing, saying that the president and senator’s comments apparently didn’t influence the case’s outcome, given that Mr. Bergdahl didn’t go to prison after all.
“Despite Sen. McCain’s threat that he would hold a hearing if [Mr. Bergdahl] did not receive a sentence to his liking, and despite the commander in chief’s ratification of his statements that [Mr. Bergdahl] was a traitor who should be severely punished, the military judge imposed no prison time whatsoever,” he wrote.
