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A presidential pardon to spare ex-Taliban captive Army Sgt. Bowe Bergdahl from facing a court-martial on charges he deserted and endangered his fellow soldiers appears unlikely in the final weeks of President Barack Obama's tenure, according to experts.
Not only has Obama granted few pardons, the president also has demonstrated no interest in meddling with the military justice system in which Bergdahl has been entangled since his release in May 2014 by insurgents in Afghanistan, several experts on presidential pardons and military law told Stars and Stripes.
Army Sgt. Bowe Bergdahl arrives for a pretrial hearing at Fort Bragg, N.C.
Bergdahl, 30, has admitted to Army investigators that he willingly left his post in eastern Afghanistan in June 2009 and was quickly abducted by Taliban fighters. Last year, the Army charged him 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 more serious misbehavior charge carries a potential life sentence, if convicted. His trial is scheduled for April.
But because Bergdahl's court-martial will occur during the administration of President-elect Donald Trump, the soldier's attorneys have petitioned the White House for a pardon. Eugene Fidell, Bergdahl's lead lawyer, has said his client cannot receive a fair trial with Trump as commander in chief after the president-elect criticized Bergdahl on several occasions during the campaign. Trump referred to Bergdahl as a "no-good traitor" at nationally televised rallies and opined that he should have been executed. Fidell said he is preparing, if necessary, to file a motion to dismiss the case on the basis of Trump's comments soon after the Jan. 20 inauguration. Beyond that, Fidell has declined to discuss the pardon request.
Few pardons under Obama
The two ranks immediaty under Sergeant are Specialist/Corporal and Private First Class. Promotion to each of these ranks are typically automatic depending on time in grade and time in service but a soldier's Commander has to approve the promotions. Reaching the rank of Sergeant is dependent on many thing. Appearing before a board of Senior Enlisted who test the soldiers military knowledge. The soldier must also complete the Primary Leadership Development Course successfully. There is also a point system of which the soldier has to achieve a set amount of points to be promoted to Sergeant the number based on their Military Occupational Speciality if the soldiers MOS is short on on NCOs the points will be low. A person could be promoted without PLDC but the rest is required and they have to complete the course at some point.
During a pretrial hearing, defense attorneys played part of a video exhibit in which Trump repeatedly says at campaign appearances that Bergdahl is a "traitor" who should be harshly punished. Bergdahl's lawyers argue the comments violate their client's due-process rights and that the case should be dismissed. The judge, Army Col. Jeffery Nance, didn't immediately rule on the defense request, but called the footage of Trump condemning Bergdahl "disturbing material." A written decision was expected later. Defense lawyers played about five minutes of the footage in which Trump repeatedly used phrases such as "no good traitor" to refer to the soldier who was held captive by the Taliban and its allies for five years.
Army Sgt. Bowe Bergdahl, center, arrives at the Fort Bragg, N.C., courtroom facility for an arraignment hearing
Bergdahl sat mostly still during the video presentation, looking away at times. By the end of the footage, the muscles Bergdahl's jaw were visibly bulging as he apparently clenched his teeth. Prosecutors say Trump's comments amounted to campaign rhetoric against actions taken by the Obama administration to bring Bergdahl home. "These comments are clearly intended to try to attack a political opponent for political gain," said Army Maj. Justin Oshana, a prosecutor. The Obama administration's decision in May 2014 to exchange Bergdahl for five Taliban prisoners prompted some Republicans to accuse Obama of jeopardizing the nation's safety. Oshana said potential jurors' exposure to Trump's comments could be addressed through questioning during jury selection. He added that it would be unprecedented to dismiss the case without first trying to seat a jury.
But Nance asked, "How does that relate to overcoming the black eye to the military justice system ... the view the public might have?" That question goes to the heart of the defense argument that Trump's comments constitute unlawful command influence by the new commander in chief. Even the appearance of such unfairness can theoretically derail a military case. The defense's motion, filed shortly after Trump was sworn in as president, cites more than 40 instances of Trump's criticism at public appearances and media interviews through August 2016.
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The court-martial against accused Army deserter Sgt. Bowe Bergdahl was delayed this week as his attorneys asked a third court to dismiss the case over disparaging comments President Donald Trump often repeated on the campaign trail about the former Taliban captive. Bergdahl's lawyers filed an appeal Thursday to the U.S. Court of Appeals for the Armed Forces asserting their client's case must be dismissed because Trump's comments, including calling the soldier a "dirty, rotten, no good traitor," could undermine the public's confidence in his ability to receive a fair trial.
The appeal to the highest military court came after the military judge overseeing the case, Army Col. Jeffery R. Nance, declined to dismiss the case in February over Trump's statements and an appellate court, the U.S. Army Court of Criminal Appeals, last week upheld Nance's ruling. "President Trump's repeated public vilification of Sgt. Bergdahl must be explicitly acknowledged as apparent [unlawful command influence] and decisive remedial action taken," Bergdahl's attorneys wrote in the court document. "The court should reverse the judgment of the Army court and grant a writ of mandamus dismissing the charges." Under military law, individuals with command responsibilities cannot influence or ever appear to influence judicial proceedings.
Sgt. Bowe Bergdahl arrives with his military lawyer, Lt. Col. Franklin Rosenblatt, for a hearing at the courtroom on Fort Bragg, N.C.
Bergdahl, 30, is expected to face a court-martial in August on charges of desertion and misbehavior before the enemy that stem from his 2009 disappearance from his eastern Afghanistan combat post. This week, Nance pushed back the April 18 trial date, a move that he had previously hinted would occur. The judge instructed both sides to plan for the court-martial to begin Aug. 7, according to Bergdahl's attorneys. In Nance's February decision denying dismissal, the judge wrote Trump's comments were "disturbing and disappointing" and potentially "problematic." However, he ultimately sided with assertions raised by prosecutors that they were primarily campaign trail rhetoric aimed at attacking President Barack Obama's controversial May 2014 decision to trade five senior-level Taliban members detained at Guantanamo Bay in Cuba for Bergdahl's release.
Nance suggested careful screening of potential jurors to determine whether they were impacted by the now-president's comments would alleviate the defense attorneys' concerns. "The statements of a private citizen, even if running for president, cannot be unlawful command or influence," Nance wrote. "No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because Candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial." In their Thursday appeal, Bergdahl's lawyers wrote that failure of the appellate court to dismiss the case could signal to civilian leaders of the military, including Trump, that they are not responsible for comments they make about ongoing criminal cases.
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They will probably bust him down to E-1 yes, DD, and prison time.The two ranks immediaty under Sergeant are Specialist/Corporal and Private First Class. Promotion to each of these ranks are typically automatic depending on time in grade and time in service but a soldier's Commander has to approve the promotions. Reaching the rank of Sergeant is dependent on many thing. Appearing before a board of Senior Enlisted who test the soldiers military knowledge. The soldier must also complete the Primary Leadership Development Course successfully. There is also a point system of which the soldier has to achieve a set amount of points to be promoted to Sergeant the number based on their Military Occupational Speciality if the soldiers MOS is short on on NCOs the points will be low. A person could be promoted without PLDC but the rest is required and they have to complete the course at some point.
I have often wondered when Bergdahl had the time to take a PT test? Who filled out his 4100?
He should be an E-1 by the time he reaches the end of his sentence I assume.
What the hell is going on in the Army when they promoted a deserter twice while he was AWOL?
The two ranks immediaty under Sergeant are Specialist/Corporal and Private First Class. Promotion to each of these ranks are typically automatic depending on time in grade and time in service but a soldier's Commander has to approve the promotions.
Innocent until proven guilty.
The UCMJ follows the US Constitution.
