PROCEDURE SAID TO BE “UNIQUE” TO MILITARY JUSTICE SYSTEM
by Sharon Rondeau
(Oct. 20, 2017) — A “pre-sentencing trial” will open at Ft. Bragg on Monday for Sgt. Robert B. Bergdahl, Stars & Stripes reported on Friday, and could include witness testimony in what is described as a procedure “unique” to military courts-martial.
On October 16, 2017, Bergdahl entered guilty pleas to respective charges of desertion and misbehavior before the enemy stemming from his having walked away from his post in Afghanistan in June 2009. His disappearance triggered a number of search operations in which six Army soldiers reportedly lost their lives and three others were injured, with one confined to a wheelchair after suffering neurological damage from a bullet wound to the head.
On May 31, 2014, Bergdahl was rescued by the Obama military from his five-year captivity by the Haqqani network, an offshoot of the Taliban, which in 2012 was classified as a terrorist organization by the U.S. State Department.
The U.S. military was aware that the Haqqanis were holding Bergdahl. A video released two years before depicting Bergdahl in captivity was reportedly created by the Taliban.
On June 8, 2012, CBS News described Bergdahl as a “POW” while also referencing emails he reportedly sent to his parents when he was on active duty in which he indicated he was “considering deserting” and was “ashamed to be American.”
An article [warning: strong and obscene language] written by the late Michael Hastings for Rolling Stone dated June 7, 2012 reported that a prisoner swap was under negotiation then as part of a “‘negotiated peace’ with the Taliban.” Ultimately, Bergdahl would not be released by his captors until nearly two years later in exchange for the freeing of five Taliban commanders from the U.S. military prison at Guantanamo Bay, Cuba.
According to Hastings, Bergdahl attempted to join the French Foreign Legion prior to entering the U.S. Army.
The question of the release of the five Taliban leaders was a recurrent subject of debate in the administration and was a key element of the behind the scenes effort by the State Department and the White House to negotiate a peace deal with the Taliban. The transfer of the five was discussed as a possible confidence-building measure to pave the way for a deal. The debates over their release were contentious, officials familiar with them say.
Those opposing release had the benefit of secret and top secret intelligence showing that the five men were a continuing threat, officials familiar with the debate tell TIME. But in the push from the White House and the State Department to clear the men, opponents to release found themselves under constant pressure to prove that the five were dangerous. “It was a heavy burden to show they were bad,” says the second source familiar with the debate.
In hearings leading up to Bergdahl’s guilty pleas entered on Monday, his defense attorneys argued that comments then-presidential candidate Donald J. Trump made on the campaign trail were prejudicial and precluded their client from obtaining a fair trial. However, on October 6, the AP first reported that Bergdahl would enter guilty pleas on Monday.
Despite those pleas, on Tuesday, Bergdahl’s attorneys entered a motion asking that the charges be dismissed as a result of Trump’s having “reasserted past criticism of their client,” referring to Trump’s response to a request for comment that “I think people have heard my comments in the past.”
On Friday, the White House issued a one-paragraph statement in regard to “military justice,” which reads:
Military justice is essential to good order and discipline, which is indispensable to maintaining our armed forces as the best in the world. Each military justice case must be resolved on its own facts. The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations. There are no expected or required dispositions, outcomes, or sentences in any military justice case, other than those resulting from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law by officials exercising their independent judgment.
Fox News reported that “Administration officials won’t say if the statement is related to Bergdahl’s case.”
The guilty pleas Bergdahl entered did not come about as the result of a “plea deal,” and Bergdahl could still receive a harsh sentence of up to life in prison, Stars & Stripes reported.
After Bergdahl’s rescue, Obama’s then-national security adviser, Susan Rice, said publicly that Bergdahl had “served the United States with honor and distinction,” and Obama gave a press conference flanked by Bergdahl’s parents, Bob and Jani, after which they walked away locked in an embrace.
On August 21, 2014, The Miami Herald reported that two federal laws signed by Obama were violated as a result of the prisoner exchange because Congress was not provided the required 30-day notice before the release of U.S. prisoners-of-war.