A federal judge has overturned the 2017 desertion conviction of Army Sergeant Bowe Bergdahl, claiming he did not receive a fair trial. The military judge in the case did not disclose that he had applied with the Justice Department to be an immigration judge after he retired.
Bergdahl received a dishonorable discharge, reduction in rank, and forfeiture of $10,000 in pay in 2017 after becoming the sole U.S. service member to be captured in Afghanistan shortly after he left his post in June 2009. President Barack Obama exchanged Bergdahl for five noted Taliban terrorists, calling the deserter a “hero” in a Rose Garden ceremony.
U.S. District Judge Reggie B. Walton rejected Bergdahl’s claim that Donald Trump, who was president at the time of his trial, unlawfully influenced the trial by calling the deserter a “dirty rotten traitor.” Sen. John McCain also commented on the Bergdahl case, referring to him as “clearly a deserter.”
Walton had some choice words about Trump that brought into question his judgment in the case.
The ruling is not the first time Walton, a 2001 George W. Bush appointee to the federal bench, has criticized Trump. After a trial involving a Jan. 6, 2021, Capitol riot defendant last year, Walton described Trump as a “charlatan” who “doesn’t, in my view, really care about democracy but only about power. And as a result of that, it’s tearing this country apart.”
“This is a good day for the rule of law, and it’s a good day for the federal courts, because it shows that while they are respectful of the military justice system, they are going to provide independent judicial review,” Bergdahl defense attorney Eugene Fidell said. He added, “The winner here is public confidence in the administration of justice.”
On the contrary, I believe the idea of justice took a major hit with this decision. Many of the missions that were carried out to find and rescue Bergdahl resulted in an unknown number of casualties.
Other U.S. service members suffered life-altering injuries and important battlefield assets were diverted during missions to recover Bergdahl, feeding a debate that challenged the military’s fundamental principle of never leaving a soldier behind. But condemnation by Trump and McCain of Bergdahl’s actions also underscored the noxious effect politics can play within the military and civilian courts.
Walton made clear in his ruling that the military courts gave “full and fair consideration” to Bergdahl’s defense, and that his court-martial, conviction and sentence were justified given his admitted conduct and guilty plea, as well as the serious casualties that resulted from his actions.
Flashback: Barack Obama’s Chickens Come Home to Roost With New Terrorist Taliban Government
Walton also faulted the conduct of military judge Jeffrey Nance, who gave short shrift to the argument that he might interpret the remarks by Trump and McCain as a signal to give Bergdahl harsh treatment.
“I don’t have any doubt whatsoever I can be fair and impartial in this sentencing,” Nance said, suggesting the administration had no influence over him because “I’m what’s referred to as a terminal colonel, which means I’m not going anywhere but the retirement pastures … and that’s in almost a year from now.”
But because Nance failed to reveal his application to be an immigration judge, Walton decided the situation required him to toss all orders after Bergdahl’s guilty plea.
Walton made clear he was not opining that there was actual bias in the case or that Nance’s orders were not “the product of his considered and unbiased judgment,” but that the “appearance of partiality” was enough.
Depending on the final outcome of litigation, a voided conviction may allow Bergdahl to access benefits and services within the Department of Veterans Affairs, such as education resources and health care. Such benefits are unavailable to former service members with dishonorable discharges.
So, bad optics have led to Bergdahl’s conviction being overturned. And the five Taliban terrorists that Obama swapped for an American who cooperated with the enemy after deserting?
Four of them are employed by the terrorist government of Afghanistan.
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