Bergdahl Once Again Avoids the Consequences of His Actions

Bergdahl Once Again Avoids the Consequences of His Actions

Bergdahl Once Again Avoids the Consequences of His Actions
Sgt. Bowe Bergdahl arrived at the Fort Bragg courthouse for a hearing on Monday. Credit Andrew Craft/The Fayetteville Observer, via Associated Press

Bowe Bergdahl pushed himself into the headlines yet again. The collective breath the nation has been holding as it waited to hear his sentence for desertion and misbehavior before the enemy was released in a whoosh when no sentence was entered yesterday. Instead of accepting his punishment, Bergdahl, through his counsel, once more pointed an accusatory finger at President Trump, alleging he can’t get a fair trial. This time, he was upset because President Trump, on October 16th, said he wouldn’t discuss the case. He went on to say, “But I think people have heard my comments in the past.” What the Times story doesn’t include is the beginning of the President’s statement. “They’re setting up sentencing, so I’m not going to comment on him.” When viewed together, the impact of the comment changes.

However, according to Bergdahl’s counsel, that “but” is enough to prevent him from receiving a fair trial. Well, in this case, a fair sentencing. In fact, according to arguments made on Bergdahl’s behalf, the only way he could receive a fair trial is to take any possibility of jail time off the table.

President Donald Trump and Senate Majority Leader Mitch McConnell speak to reporters in the Rose Garden of the White House after their meeting, Oct. 16, 2017, in Washington.

Compounding the problem, the military judge, Col. Jeffrey R. Nance, seems to be buying into the argument, at least to some degree. According to Col. Nance, the President’s statement was tantamount to him saying, “I shouldn’t comment on that, but I think everyone knows what I think on Bowe Bergdahl.” Nance went on to say there is “a vital public interest in ‘maintaining confidence in the military justice system.’”

He is right. However, what makes this case any different from any other criminal trial that has received a great deal of publicity? Every year there are trials where the crime was so heinous, a media circus resulted. In those cases, potential jurors are carefully screened, making sure they can listen to evidence and come to a verdict based on the evidence and not on emotion or politics or anything else. Judges who hear bench trials have to do the same thing. They have to render verdicts based on the law and on the evidence presented and nothing else.

So why is Col. Nance so concerned about appearances, especially after Bergdahl pled guilty? The simple answer is because the President is his boss, as well as the prosecutor’s boss. He is worried about appearances. But are those appearances what the average citizen is worried about? I’d say no. Bergdahl pled guilty and now the country is ready to hear what sentence Nance feels is appropriate for his crimes. If Nance agrees to no jail time, I have no doubt he will lose the respect of much of the military but the public as well.

But there’s another possibility, one Nance himself opened. According to the NY Times article, Nance offered Bergdahl the opportunity to withdraw his plea. Bergdahl declined, but there is nothing preventing him from changing his mind. If he does, Nance could allow the plea change and, if that happens, we are back to square one.

It is important to remember that Bergdahl has never accepted responsibility for his actions or the consequences of those actions. “At the time, I had no intention of causing search and recovery operations. . . I believed they would notice me missing, but I didn’t believe they would have reason to search for one private.” Somehow, he missed that part of training where he was told 1) you don’t desert your post and 2) if you go missing, we will look for you, especially if we are in a war zone.

President Trump isn’t the only politician to have condemned Bergdahl. Senator John McCain said Bergdahl was “clearly a deserter,” and then went on to say Congress would investigate if he wasn’t sentenced to jail time. Others have voiced their opinions as well. So have members of Bergdahl’s unit.

“Accepting the risk of the maximum penalty with a naked plea is very unusual,” said Geoffrey Corn, a former Army lawyer and lieutenant colonel who is now a professor at South Texas College of Law in Houston, “But it is the best type of plea to show a defendant is serious about taking responsibility for their misconduct.”

Except Bergdahl has yet to do so. Accepting responsibility for misconduct means also accepting the consequences, something Bergdahl continues to prove he is unwilling to do. How much longer is the Army and the American public going to have to wait for justice to be done?

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  • Dana says:

    Your article title is a misnomer: SGT Bergdahl has not (yet) avoided the consequences; they’re just a bit delayed while COL Nance decides on his sentence.

    Why would SGT Bergdahl have pleaded guilty to a crime for which life in prison was a possibility? Unless there has been an undisclosed plea bargain, the only reasonable answer is that his lawyer hopes that not having the evidence presented against his client, and the guilty plea, will lessen the sentence SGT Bergdahl receives. The problem is that three soldiers who were wounded directly as a result of the search testified at the sentencing hearing.

    My guess? A too-short sentence, around seven years, which President Kamala Harris will pardon on January 21, 2021.

    • Amanda Green says:

      I think we’re talking semantics here. In my mind, Bergdahl has avoided, yet again, accepting the consequences of his actions and he continues to reach for anything that might help him avoid them.

      As for your question about why he would have pled guilty, a number of military expects and legal scholars point out this is a tactic by defense attorneys to basically seek a lesser sentence by avoiding a trial where everything would come out.

      I do agree that the sentence will be too short. I’m just hoping the colonel doesn’t let him get his way and give him no jail time.

  • GWB says:

    “The President is his boss” is a bit … off. Courts martial are protected from undue command influence better than anything else around. And the President is FAR up the chain.

    Let’s see what happens.

    • Amanda Green says:

      I know, but that is the excuse — er, explanation — being given for the “concern” about appearances. I don’t buy it any more than I buy the argument that the colonel can’t put aside his personal feelings and render sentencing based solely on the evidence presented to him and in accordance with military law.

      • GWB says:

        Yes, because the evidence clearly points to a soldier totally abandoning his duties – every last responsibility he has – while in the presence of the enemy. That, alone, deserves his never seeing the outside of a prison again.

  • Bucky Barkingham says:

    Perhaps the deserter will call President Obama as a character witness.

  • Angel says:

    I agree! what a disgrace he is..let us hope karma is watching.:)

  • GWB says:

    One thing I’m curious about: the combat stripes on Bergdahl’s uniform. He actually gets credit for 10 of those from 5 years in captivity, after his crime? (I noticed them in a picture of him walking the other direction from the visuals you have here.)

    • Scott says:

      Until sentencing GWB, then he looses them, along with all other combat awards

      • GWB says:

        If that’s the case, it seems prejudicial to a jury (I know, he never got in front of one) to wear those when the very thing you’re being tried for would say you didn’t earn them.

        • Jeff Gauch says:

          I think it would be the other way around. If Big Army stripped the accused of combat awards, it would send a message that the defendant had already been judged guilty.

          Let him keep the awards, it’ll be one more thing to strip off him before he faces the firing squad.

  • OC says:

    Any sentence that doesn’t include a gallows is getting off light for this traitorous POS.

  • TRX says:

    If he’s *not* convicted, morale in the service is going to fall yet another notch.

    A lot of active duty are still upset about Manning walking away free.

  • MarkW says:

    Under the UCMJ, the judge must allow the accused the opportunity to withdraw his plea prior to the time that sentence is announced if the accused raises an issue calling into question the voluntariness of his plea. The accused apparently did so. The judge wasn’t offering him an ‘out’, he was following the law.

    Once the accused has put the fairness of the proceedings at issue, such as by challenging the court’s ability to reach a sentence free from the taint of unlawful command influence, the judge must rule on that challenge. Such a ruling requires analysis, and so the judge is going to take the time to present his ruling with proper factual and legal support.

    Every military case that results in sentence to a punitive discharge or confinement for more than a year results in a mandatory appeal to the next higher court as a matter of law. The reason to take the time to do things so meticulously is so that once an accused is actually found guilty and sentenced, the findings of the court will stand up on appeal.

    Nothing appears amiss with the process, at least not yet. And no, the deserter isn’t going to take responsibility for his actions, which is just another reason we all will benefit by careful proceedings.

  • Leland says:

    The way I read Col. Nance statements, as you quoted them, is he’s not falling for the bait being handed out by the defense lawyer to be used in appeals. That may be hopeful on my part, but other than offering Bergdahl a chance to change his plea, which probably wouldn’t go well for Bergdahl; Col. Nance really didn’t budge. He just accepted the argument as plausible, but the more pertinent evidence is sitting in front of the Colonel. Bergdahl admitted guilt, soldiers in his unit testified to the impact of Bergdahl’s action, and there are common sentencing guidelines for behavior such as Bergdahl’s, and “no jail time” isn’t a likely scenario.

    Manning walked away free because of the President. The American people didn’t get a fair trial in that case.

    • askeptic says:

      Someone (his attorney?) needs to remind Sgt. Bergdahl that if he withdraws his plea, and is found guilty at trial, the possibility of a death-sentence for his actions are much greater. And, there is no guarantee that his re-trial would be conducted by Col. Nance.

    • Leland says:

      Well, I hereby disavow my previous views of Col. Nance. He’s a putz.

  • Jim says:

    Bergdahl’s sentencing should be less about his willful desertion, but about the six individuals who were killed searching for him. To give those men and their families some measure of justice, Bergdahl should receive the maximum allowable sentence. If it were up to me, he would be sentenced to solitary confinement for the rest of his miserable life.

  • Brian says:

    Why hasn’t Trump been prosecuted for his military deferments, which was a clear fraud, akin to desertion? Instead of harping on an innocent man and his Muslim family, we should be prosecuting Trump.

  • B Dubya says:

    Bergdahl will never be free again, even if he is not incarcerated further.
    Justice will be served. Upon SSgt Bergdahl . It may come from people he has reason to fear, his squad mates and the relatives of the 10 better men than he who were killed trying to rescue him.
    Charles Manson is alive today because he is incarcerated and for that reason only.

  • askeptic says:

    Nance should enforce the UCMJ and ignore “appearances”.
    If he scrupulously adheres to the law, he will have the greatest of “appearances”, and the support of his Commander In Chief.

  • Rod Trask says:

    Any sentence should be ‘without pardon’. I know it doesn’t exist..just saying.

  • The Demon Slick says:

    Is Nance saying that he himself is incapable of resisting Trumps rhetorical influence ?

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