In light of the U.S. military’s withdrawal from Afghanistan, let’s look at one of the many stories that stood out during the military’s decades-long operation in the country – the story of Bowe Bergdahl. Robert ‘Bowe’ Bergdahl deserted his post on 30th June 2009 before the Taliban captured him and held him hostage for five years.
The Taliban released him in exchange for five Taliban members held at Guantanamo Bay. In October 2017, Bowe pleaded guilty to desertion and misbehavior before the enemy. His punishments were: a $10,000 fine, dishonorable discharge, and demotion to the rank of private.
Bowe awaits the verdict of a federal appeal to overturn the Court Martial’s decision upholding his sentence
Bowe appealed his sentence to The Court of Appeals for the Armed Forces after the lower appellate level upheld his conviction. Bergdahl based his appeal on the grounds that comments by President Donald Trump and late Sen. John McCain condemning him influenced his sentence.
On the campaign trail, Trump had referred to Bowe as ‘a dirty, rotten traitor.’ Sen. John McCain had threatened to refer the matter to the Senate if the court failed to punish Bowe. “If it comes out that [Bergdahl] has no punishment, we’re going to have a hearing in the Senate Armed Services Committee,” McCain told a reporter.
According to Bowe’s lawyers, President Trump and Sen. McCain’s comments amounted to unlawful command influence: The military officers handling the case might have interpreted the comments as orders to punish Bowe.
The court dismissed Bowe’s appeal via a narrow 3-2 decision. Judge Kevin Ohlson stated that Bowe’s guilty plea precluded Bowe from arguing undue influence. The judge said:
‘Based on Appellants own words, no impartial observer would conclude that it was the comments made by the President of the United States and/or by the chairman of the Senate Armed Services that caused Appellant to plead guilty; rather, it was the strength of the Government’s evidence that caused him to take that step.”
In early 2021, Bowe and his lawyers filed a complaint in a federal court in Washington D.C, petitioning to set aside Bowe’s conviction. Bowe’s lawyers assert that President Trump’s comments influenced the sentencing. The filing states:
“The scandalous meddling in a specific case by leaders of the political branches – one of whom was Commander in Chief of the armed forces – would never be tolerated if the proceeding had been a criminal prosecution in this or any other federal district court and should not be tolerated in a court-martial.”
Bowe also contends that his judge at the court-martial suffered a conflict of interest during the trial. The filing states that Judge Jeffrey Nance eyed a promotion to an immigration judge post, which came his way a short while after Bowe’s sentence.
Bergdahl’s attorneys claim that Judge Nance’s desire to secure the promotion might have influenced her decision. Bowe’s chances of success remain slim as reports state that the federal government has urged the federal court to dismiss Bowe’s case.
Bowe turned from hero to villain after pleading guilty to desertion and misbehavior
Bowe was in a celebratory mood when President Obama’s government successfully negotiated his release. Some argued that the price for his release was too high, but they nevertheless celebrated that an American soldier had returned home.
That high point in Bowe’s story proved temporary. An investigation into his disappearance found that Bowe had deserted his post. Bowe hit his lowest point when he pleaded guilty to desertion and misbehavior before the enemy.
Bowe’s plea attracted a maximum sentence of life imprisonment, but the court granted him a light sentence.
Nevertheless, the two dissenting judges at The Court of Appeals for the Armed Forces felt that President’s influence on the case couldn’t be ignored. Judge John E. Sparks opined:
“Never in the history of the modern military justice system has there been a case in which the highest level figures, including the Commander in Chief, have sought to publicly demean and defame a specific military accused. The vilification of Sergeant Bergdahl before, during, and after the court-martial was unprecedented, hostile, and pernicious in the extreme.”
Bowe hopes that the federal court Judge in D.C. will conquer with John E. Spark’s ruling. Bergdahl argues that Trump’s comments violated his Fifth Amendment right to a fair trial, and therefore, the court should set aside his conviction and sentence.