Military Judge Upholds Misbehavior Charge In Bergdahl Case
Task and Purpose is reporting Col. Jeffery Nance, the military judge in Sgt. Bergdahl’s court martial, has denied a defense motion to dismiss the misbehavior before the enemy charge. They argue the charge doesn’t state a specific offence and should be dropped.
Bergdahl was charged with desertion and misbehavior before the enemy by endangering the safety of his command by walking off a remote Afghanistan post in 2009, purportedly to alert higher ups with what he thought were serious leadership problems in his unit. He was captured and held by insurgents for five years before being exchanged.
“We’re continuing to prepare energetically for trial on both charges,” said Eugene Fidell, Bergdahl’s civilian lawyer. “Where things stand is, this will be an issue on appeal if Sgt. Bergdahl is convicted on the misbehavior charge.”
Prosecutors allege Bergdahl deserted his post without authority, causing search and recovery operations. In his ruling, Nance said the misbehavior charge does state an offense.
“The accused is on fair notice that he must defend himself for leaving Observation Post Mest alone and without authority, thereby wrongfully causing search and recovery operations,” according to the ruling. “Certainly this notifies him that he has to defend himself from the charge that he has intentionally committed a series of interrelated acts before the enemy, which, even if not particularly proscribed by some other criminal statute, are without authority and wrongful and, thus, criminal.”
“There is simply no way the accused could not reasonably have understand that his conduct was proscribed,” he wrote. “Furthermore, the alleged conduct cannot even be said to be ‘marginal’ misconduct. The government avers that the accused left his combat outpost intentionally, without authority and for the purpose of causing search and recovery operations, which he ultimately did cause. The specification alleges that all of this was done ‘before the enemy’. How could such alleged conduct be characterized as anything other than misconduct under any definition of the word?”
The court-martial is scheduled to begin Oct. 23 at Fort Bragg. Bergdahl could face life imprisonment if convicted of misbehavior before the enemy.
Category: Politics
October 23rd… I’ll be looking forward to that date. Hopefully, the proceedings will be quick and Bergdahl will be spending life in prison.
Judge Nance does not have the reputation of a very harsh sentence, so don’t be too disappointed if Bergdahl (#1) picks a judge alone trial, and (#2) doesn’t get anything like the sentence he deserves.
err. a very harsh sentenceer.
er, er, I mean er, dang it.
He seems to favor the double negative.
Given how Big Army has often not crushed those so deserving of it to discourage others, it would be nice if this turd got severely hammered, as he so richly deserved for a change.
Hell no! why feed that fruitcake son of a bitch? HANG HIM on the same limb as his liberal, muslim loving parents!!
I’m sorry, but what crime have his parents committed?
Raising an asshat offspring doesn’t deserve the death penalty, else, we would see strange fruit blossoming across the country…
You hang him. Don’t ask someone else to do it, tough guy
At least the members of his fan club no long occupy the oval office and can’t pardon his ass. Throw the book at him!!!
Sounds vaguely reminiscent of Edward Slovik whining about how the Army was supposedly only going after him because he was an ex-con.
Slovik was unfortunate enough to go through his trail and appeal when the US Army was engaged in the biggest battle in it’s history.
While we look at our WWII vets as being ” The Greatest Generation” there wasn’t a shortage of problem children.
In the fall of 1944 in the city of Paris alone there was the equivalent of an entire division of GIs who were either AWOL or flat out deserters.
Ike felt he couldn’t let someone slide who had flat out told his superiors that he would rather do a few years at most in the stockade then risk being wounded or killed in combat.
Slovik was a POS barracks lawyer who reckoned he could game the system.
His execution was intended as a message to all the sad sacks that if you played the game you could pay the ultimate price.
The general consensus among the troops was that Slovik got what he had coming.
Slovik’s execution stands out because it was so rare. The Russians and Germans executed untold thousands as the result of drum head courtsmartial or summary executions for ” crimes” as petty as rat-fucking captured enemy food stuffs without permission.
Good. Get it done and over with.
I can’t wait to see his good cookie (with two loops) revoked and ripped off his chest in the court room, while the strains of “Branded” play in the background.
Nothing less than life without. He’s a slug.
Gee. That’s . . . just . . . too . . . bad.
Buck Fergdahl.
A PFC leaving his post to report on leadership issues to the higher command. What a joke.
I wonder if he will change genders in prison.
👱♀️👱♀️
Think he might become a man?
^+100 ^
Not a chance!
(tips hat to Poetrooper’s repartee.)
Just take his knob wobble ass out back and used a 9mm..that will take care of things nicely, albeit, a ta messy.
Shooting is far too dignified for him, I’m all for hanging.
blood eagle
The nice thing is that ropes can be re-used. Very green. 🙂
A good hemp rope can be used over and over and practically never wears out. Also, it does not cause those unsightly rope burns that Manila rope often leaves.
They should have put a round thru his forehead when the repatriation was about….the sniveling, whining little pussy crying because he didn’t want to come back…”ok a.h., you don’t have to come back BANG!”
I am sure the SF guys that retrieved him would have been happy to accommodate had they thought they could get away with it. The SF team that caught John Walker Lind said they would have let the Afghans shoot him, but unfortunately an American media type was able to photo him and found out he was an American, as the Northern Alliance Afghans were shooting all the foreign fighters captured with the Taliban or Al Queda at that time.
Every time I see that picture, I see the shame and disgrace that he brought upon the Airborne.
I see him as the poster-child of the failed policies of every liberal in Education’s snowflake touchy-feely crap setting him up for failure because he never learned that letting yourself get butt-hurt because you didn’t get your way, was not how you learned to be a productive, responsible member of society.
All it did was to get better men than him maimed or dead.
Life, without, is weak tea, but it is what it is.
I gotta wonder. His letters home made it clear he was deserting to join the enemy. This misbehavior crap is really a gift. But the question that comes to my mind for him is; “How did you think this was going to turn out?
I try to always ask that whenever I see someone do something really world class stupid.
He royally screwed up in getting some civilian lawyer, who no doubt wants to get famous off this case, and knows nothing about how military courts martials work. The dude will start playing Perry Mason games and further screw his client with the court, and in the end Berghdahl will end up in Kansas.
No, that is not correct. His civilian lawyers are very, very experienced…indeed iconic…figures in military justice, with plenty of military experience. (Eugene Fidell, his lead counsel, is a Coast Guard vet.)
As I have commented below, they have done a very good job indeed with putting a “sympathetic” version of Bergdahl’s story before the public. (Lots of people only casually acquainted with the case have bought into the meme that “he had ‘mental issues,’ so it’s really the Army’s fault for recruiting him.” As I note below this idea is BS, but they’ve sold it well.)
I imagine they will do a very good job at trial as well. Forum selection (deciding whether to go judge alone instead of with a panel) may be the most important part of that–I am guessing they will go judge alone but we will all find out at the same time.
In sum, Bergdahl’s lawyers are excellent. Which doesn’t change at all what he is, or what he deserves. In the end I hope he will still end up in Kansas.
P.S. – The misbehavior charge is important because it massively raises the maximum sentence.
Isn’t the maximum sentence for desertion during wartime still the death penalty? Even if the prosecution decided not to make his trial on desertion charges a capital case, wouldn’t that leave life w/o parole as an alternate max (“as a court-martial may prescribe”)?
“Time of war” is defined in a restrictive way in the MCM…”a period of war declared by Congress [never happens] or the factual determination by the President that the existence of hostilities warrants a finding that a ‘time of war’ exists for purposes of [the rules].”
I’m not aware Obama had such a finding in place at the time Bergdahl deserted, and when I was prosecuting deserters, we took it as given that this wasn’t “time of war.”
But yes, the death penalty is still on the books in that case…though to actually get a death sentence you’d have to run the gamut of modern Supreme Court death penalty jurisprudence. Which, in my view, is really designed to gradually abolish the death penalty by making it too expensive to do, ever, and by expanding the class of people who can’t be executed. (Whether a bench of Trump appointments can begin to reverse that 40+-year-trend remains to be seen. Most law schools train their graduates on a pretty strongly left-leaning view of the Constitution, so finding enough judges who don’t think that way is going to be a challenge.)
So, anyway, to see the maximum punishment for any offense, check Appendix 12 of the Manual for Courts-Martial (the statutes all say “as a court-martial shall determine,” but the MCM is an executive order so the MCM can place further limits on sentence). For desertion with intent to shirk, outside of “wartime” defined in the restrictive way, the max is 5 years. But for misbehavior before the enemy, the maximum really is life without parole. Thus, the misbehavior charge really is a big deal.
In general, with a few exceptions, my experience is that going judge alone tends to moderate the sentence, whereas panels are more likely (though by no means certain) to run to high and low extremes.
So I would be surprised (though not unpleasantly!) if Judge Nance went for a high-end sentence.
Noted. And thanks, I’d forgotten (or never knew) that the MCM had the requirement for a Presidential finding of a state of war under these circumstances.
And though I’d love to see it, I’d frankly also be surprised if Bergdahl were to get life.
However, the state of emergency declared on 14 Sep 2001 by former President Bush that formerly began the US War on Terror has never ended; it remains in effect. As I recall, it was last extended for a year by President Obama late last summer. Seems to me that any determination by President Bush that we were in a “state of war” for the purposes of the MCM, if such a finding exists, would thus also remain in effect.
Hopefully the former President’s staff made sure he “dotted the I’s and crossed the T’s” with respect to that administrative detail.
I looked it up here and I see it does not contain a finding that a state of war exists for purposes of Parts III and IV of the MCM. (The language I cut above continues….”the factual determination by the President that the existence of hostilities warrants a finding that a ‘time of war’ exists for purposes of R.C.M. 1004(c)(6) and Parts IV and V of this Manual (i.e., the Manual for Courts-Martial). (Rule 1004 is the rule for passing death sentences, and Part IV is the part that lists all the punitive articles of the UCMJ.)
The order does invoke several statutes, allowing for stop-loss and increased troop strength, but I didn’t see there and don’t know of any current finding that we’re “in time of war” for purposes of those provisions.
Apparently I didn’t phrase my previous comment well enough.
That’s the basic EO declaring the state of emergency beginning on 11 Sep 2001 which led to what we call the GWOT. It indeed does not contain a MCM “state of war” declaration.
You indicated that former POTUS Obama made no such MSM “state of war” delcaration. I take that to mean that he made no such declaration any time while in office from 2009-2017.
However, it’s possible that GWB made such a MCM “state of war” declaration at some time after 14 Sep 2001. Since the state of emergency that became the GWOT has been in continuous existence (having been extended repeatedly) since 11 Sep 2001, it seems to me that any such later MCM “state of war” declaration by any POTUS made after that date applicable to the GWOT would also continue to be in effect.
Such a later MCM “state of war” declaration by GWB between 2001 and 2009 was what I was referring to by “administrative detail” above.
I see what you mean. I’m not aware of one, or of Obama renewing such a thing if there ever was. And I never saw the “time of war” element charged in Iraq or elsewhere, though of course I only saw a small sample of all the cases that got tried.
I wouldn’t blame the Bush administration even if I knew for sure they didn’t issue that proclamation. Happily, whatever other problems we’ve had, we haven’t had to deal with mass desertions or mutinies of the kind that need a bunch of hangings to stop the Army from falling apart. (We have problems aplenty but they don’t lie there.)
Side note, something I didn’t remember until checking in response to your comment: Rule 1004(c)(2)(6) of the Rules for Courts-Martial allows the death penalty in any murder or rape case if “the offense was committed in time of war and in territory…in which the armed forces of the United States were then engaged in active hostilities…”
This isn’t mentioned in the Akbar appeal but it wouldn’t need to be…Akbar’s murders were premeditated and so warranted the death penalty without the need for the prosecution to raise this one.
A belated thanks for the reply (missed the reply earlier). I haven’t seen any such declaration (or reference to one having been issued) either, and cursory initial Internet searches haven’t been very helpful. I’m not sure I have time to wade thru all EOs since 9/11 to see if any such declaration was ever made by either Bush(43) or his successor.
I was hoping you (or one of your colleagues) might know, given your line of work. (smile)
I offered Jonn first refusal on this article, in my mind being being an Army rice bowl issue. He gave me the green light; he’s tired of writing about Bergdhal.
With any luck, there will be only one more post concerning him on TAH.
Wish they would stop calling him SGT Bergdahl. It’s a slap in the face to every NCO out there. I was brought in from the field in a chopper to take my E-5 oral board, and then back out to resume the war !
Yeah it is maddening, but it’s that innocent until proven guilty thing.
What I want to know is what morons signed off on promoting this POS deserter in combat. All Slovik did was fall asleep on guard duty if IIRC.
I just googled Pvt. Slovik and I stand corrected. He was charged with and convicted of desertion to avoid hazardous duty. It sounds like exactly what Berg-boi did. Although in Slovik’s defense, he didn’t misbehave with the enemy and get people killed and wounded as a result of his misbehavior.
Obama and the bathhouse boyz!!
Seeing any pic of Bergdahl in uniform ties a knot in my gut knowing how he disgraced it< I MUCH prefer seeing the pic og him with the Hadji grinning like he's saying "SEE? Him my favorite Goat Boy!".
It’s annoying that Berghdal gets the title “Sargent”. I can’t wait until he gets back down to “Private”.
You mean “prisoner”? Inmates have no rank in the big house.
SO fucked up in so many ways, what a waste of flesh and oxygen as well as US Army rank, pay, billeting and chow.
Improperly leaving his post without proper relief. Yep, that is how they do it.
He walked off a FOB so remote that there was no chance of him reaching anywhere to report anything to, lying POS.
My ex spent a year at that FOB and it was named after a member of his platoon, Jamie Kearney KIA 11.01.04.
Bergdahl takes me to a level if pissed off I rarely reach.
shall be punished by death or such other punishment as a court-martial may direct.
I hope that court-martial gives him no leniency.
I still say the last words the judge states at the end of the trial should be:
“…shall be hanged by the neck until dead, dead, dead.”
The podcast Serial did a season on Bergdahl. It’s pretty good, and is a fairly straightforward accounting of the facts, with interviews from Bergdahl himself and others in his platoon.
Two things are clear to me from listening to it. 1) Bergdahl should never have worn a uniform, and 2) Bergdahl isn’t so much a coward as a smartass barracks lawyer. He walked off not because he was afraid, but because he thought he alone had it all figured out and he needed to tell the CG personally.
He fully intended to cause a DUSTWUN, which would (in his kind of strange mind) force the brigade or division commander to listen to him so he could tell them how screwed up his unit was.
The interesting thing is that he is clearly an intelligent kid, yet he based his decision off whatever Rumor Control in his company was putting out. On one hand he held himself superior to the rest of the junior enlisted, on the other hand he completely bought into all the B.S. they did.
Clearly a boy-man; older and a bit smarter than the average bear in his platoon, and his parents did not do him any favors growing up by not giving him any sort of moral compass.
In fact, some of his friends from home knew he was going to do something stupid based on the letters he was sending.
Interesting tidbit: His CSM went on every recovery mission in the early days because he was seriously concerned that the troops would shoot Bergdahl on the spot.
To get the rest of the story you should look at the letter he wrote home (published in Rolling Stone, sometimes quoted in these pages)…and look at his interview with General Dahl here where he floats the “deliberate DUSTWUN” story…the same page has his 706 board conclusions.
When I put these things together, the idea that he “had mental issues that should’ve kept him out of the Army” looks like defense counsel BS, and so does the “deliberate DUSTWUN” story. He had an “adjustment disorder” in the coast guard (i.e., he stressed out in boot camp) but was perfectly fine when he entered the Army. His only later diagnosis is a personality disorder.
He went out to Afghanistan as a “stud” who was hoping to take the SF Q Course. Then he and a bunch of other guys got reamed by the battalion commander because they worked outside the wire without their armor on…and got Article 15’s. Right after that, Bergdahl writes a very disloyal letter (about how “the title of U.S. Soldier is just the lie of fools” and how he is “ashamed to be an American.”) And then he walks off into the arms of the Taliban.
After…and only after…he gets back, he starts telling this story about how he was hoping to report his bad, bad leadership to the CG, and the “deliberate DUSTWUN” was his ploy to make that happen. But I think his words and deeds at the time are more telling than the story he came up with afterwards.
His defense attorneys have done a good job of putting out a more sympathetic story…especially by being vague about his “mental issues”…but when I look closer it doesn’t really gel.
The one thing he does reveal…unintentionally…in the Dahl interview is his arrogance, the idea that he really is a cut above the ordinary Soldiers around him, and knows which ones are “real warriors” (like himself) and which are not.
If one looks at the terrain and the distance involved for his to walk to somewhere were he could get to the CG, it is obvious his story is a complete fabrication. Moreover, the Afghan villagers reported that when he showed up in their village he asked to be put in touch with the Taliban. If he was going to go seek out the CG, he certainly would not have walked off his base into Indian Territory with no weapon or ammo.
Also, since he asked to hook up with the Taliban, one has to ask: Did he think they were going to convey him to the CG at his headquarters? But if he was going to “Chu Hoi” to the enemy he certainly wouldn’t want to show up with a weapon, as it would give them an immediate excuse to shoot him. So, I think he was both a deserter and a traitor. I think he only decided he wanted to come home after his ass got extremely sore. That photo with his grinning Taliban butt-buddy says it all.
Too bad that didn’t happen. Think of all the trouble it would have saved, including some lives and combat wounds.
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