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Military judge: Bergdahl bears some responsibility for risky search missions

FORT BRAGG, N.C.  — A military judge weighing evidence of injuries to service members who searched for Army Sgt. Bowe Bergdahl said Friday that the soldier bears some responsibility for risky search missions triggered by him walking off his post in Afghanistan.

The judge, Army Col. Jeffery Nance, said at a pretrial hearing that he still hasn't decided how far he'll let prosecutors go, if at all, in using evidence of the serious wounds. One soldier was shot in the head and suffered a traumatic brain injury; the other required hand surgery.

"Sgt. Bergdahl is not responsible for a never-ending chain of events ... But he is responsible for a certain amount of that chain of events," Nance said Friday.

The prosecutors, he said, "have got to be able to put on some evidence of endangerment, and the question for me is how far on the spectrum they should be able to go."

One of the prosecutors, Army Maj. Justin Oshana, says evidence of the injuries shows Bergdahl endangered his comrades by walking off his post in 2009, and "the endangerment prong is one of the critical pieces of this trial."

But defense attorney Army Maj. Oren Gleich said many other factors that had little or nothing to do with Bergdahl coalesced into the hastily planned mission during which the two soldiers were wounded.

"You have to factor in all the intervening causes as to what created a dangerous situation," Gleich said.

The judge said he's aiming for the right balance. At a previous hearing, Nance questioned whether jurors would reach unfair conclusions about Bergdahl based on an emotional response to graphic information about the soldiers' wounds.

Bergdahl, who was swiftly captured after walking off his post and held captive for five years by the Taliban and its allies, hasn't decided whether to have a trial by jury or judge alone at his court martial, scheduled for April 2017.

He is charged with desertion and misbehavior before the enemy; the latter could put him in prison for life. Bergdahl has said he walked off intending to alert higher-ups to what he felt were problems with his unit.

Prosecutors want to use evidence related to a particular search mission involving a half-dozen U.S. service members embedded with 50 members of the Afghan National Army. Another officer involved in the mission has previously testified that its sole purpose was to search for Bergdahl.

The group was attacked near a town in Afghanistan on July 8, 2009. U.S. Army National Guard Sgt. 1st Class Mark Allen was shot in the head during the firefight; prosecutors say he uses a wheelchair and is unable to communicate. Another soldier had hand injuries because of a rocket-propelled grenade.

Defense attorneys have presented evidence that the mission was shoddily planned, even by the standards of the missing-soldier alert Bergdahl caused. They also questioned whether the wounded soldiers fell within the specific group of military units Bergdahl is accused of endangering.

Also on Friday, Nance said he wasn't going to require testimony from government intelligence officials — despite threatening to do so — because progress was made on providing classified evidence to the defense.

The Obama administration's decision in May 2014 to exchange five Taliban prisoners held at Guantanamo Bay, Cuba, for Bergdahl's freedom prompted criticism from Republicans including President-elect Donald Trump, who accused Obama of jeopardizing the nation's safety.

Bergdahl, who's from Hailey, Idaho, has asked Obama to pardon him before leaving office.

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