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A federal judge on Tuesday wiped out the conviction and sentence of Bowe Bergdahl, the former Army sergeant who walked off a base in Afghanistan in 2009 only to be held captive by the Taliban for five years, and whose release in a prisoner swap prompted intense controversy.
In a 63-page ruling, Judge Reggie B. Walton of the Federal District Court for the District of Columbia vacated all the court-martial proceedings against Sergeant Bergdahl after October 2017. At the time, the military judge in the case, Jeffery R. Nance, then an Army colonel, applied for a job with the Justice Department under President Donald J. Trump, a step he did not disclose. Mr. Trump had repeatedly railed against the sergeant, calling him a traitor and suggesting that he be executed.
The ruling could lead to a second trial before a new judge. After Sergeant Bergdahl pleaded guilty to desertion and to endangering the American troops sent to search for him, Colonel Nance reduced his rank to private and ordered him dishonorably discharged, although he did not sentence him to prison.
Eugene R. Fidell, a lawyer for Sergeant Bergdahl, called the decision “an important victory,” but said it was not yet clear how the military or his client would proceed, including whether either side will appeal.
The defense could challenge a portion of Judge Walton’s ruling in which he rejected its argument that the entire case should be thrown out because of the comments by Mr. Trump.
Colonel Nance had earlier rejected a similar motion, and he had submitted that ruling as a writing sample with his job application at the Justice Department. Judge Walton said those circumstances raised the appearance of potential bias that required redoing the case.
The case, he said, presented “a unique situation where the military judge might be inclined to appeal to the president’s expressed interest in the plaintiff’s conviction and punishment when applying” for a job as an immigration judge.
In the spring, Judge Walton had issued a terse preliminary order and said he would issue a written opinion within 60 days “absent extraordinary circumstances,” but that deadline had come and gone. His opinion on Tuesday was accompanied by a final order that can be appealed.
In 2009, Sergeant Bergdahl left his outpost in Afghanistan without permission, intending to hike to another military post and report perceived wrongdoing at his unit. A sanity board later found that he had been suffering from a “severe mental disease or defect” at the time.
Hours later, he was captured by militants, prompting a dangerous but fruitless search. His captors held him in brutal conditions for five years, locking him in a cage and in the dark for lengthy periods and beating him with cables.
In 2014, the Obama administration secured his release in exchange for sending five high-level Taliban detainees from the Guantánamo Bay prison in Cuba to Qatar. Several later took part in peace talks with the Trump administration over ending the Afghanistan war.
The sergeant’s case took on a political dimension after the Obama administration sought to celebrate its role in securing his release. In May 2014, President Barack Obama appeared alongside his parents in the Rose Garden and his national security adviser, Susan E. Rice, praising Sergeant Bergdahl for serving with “honor and distinction.”
But the prisoner swap swiftly devolved.
For one, the administration had transferred the Taliban detainees without notifying Congress 30 days beforehand, as is required by federal statute. It said that acting without delay was necessary to protect Sergeant Bergdahl’s life and that disregarding the statute in such circumstances was lawful, but Republicans maintained that the transfer was illegal.
Former soldiers also came forward to describe the circumstances of the sergeant’s capture, accusing him of desertion. Republicans seized on those accounts to contend that the prisoner swap had not been worth it.
Amid a politicized furor, the narrative further darkened. Some former soldiers claimed that he had been trying to join the Taliban and that five to seven Americans had died searching for him. A military investigation completed in 2015 found no evidence to support those claims.
Still, several solders were injured during the search missions, most seriously Master Sgt. Mark Allen, who was shot through the head in June 2009 and lost the ability to walk, talk or take care of himself. He died in October 2019.
While the defense had told Colonel Nance that a sentence of dishonorable discharge would be appropriate, Mr. Fidell had also said at the time that he hoped that it would be overturned. Such a discharge, he added, would deprive his client of health care and other “benefits he badly needs” from the Department of Veterans Affairs.
The defense had argued that Mr. Trump’s comments amounted to unlawful command influence, violating a rule in the court-martial system that prevents senior commanders from illegitimately manipulating such proceedings. That made it impossible for Sergeant Bergdahl to get a fair trial, defense lawyers said.
But the circumstances as a whole, Judge Walton wrote, fell short of what would be necessary to shut down the case. Still, he implicitly criticized Mr. Trump, citing the principle that people are innocent until proven guilty and a need for senior leaders to avoid undermining perceptions of an impartial legal process.
“What occurred in this case illustrates why individuals aspiring for public office and those achieving that objective should not express their desired verdict and punishment of individuals merely accused of committing criminal offenses,” he wrote.
Posted on 26 Jul 2023 02:12 link