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Bergdahl files lawsuit claiming undue command influence by Trump, McCain

Army Sgt. Bowe Bergdahl apologizes for desertion and charges related to leaving his post in Afghanistan.

Former Army Sgt. Bowe Bergdahl has filed a lawsuit alleging “unlawful command influence” against former President Donald Trump, the late Sen. John McCain, and asking whether the judge overseeing his case should have disclosed that he had applied for a “lucrative job” at the justice department.

Bergdahl claims the “scandalous meddling” in his case likely violated his Constitutional rights to due process.

Before and during his 2016 presidential campaign, Trump “repeatedly vilified” Bergdahl, the lawsuit claims, describing him as a traitor and suggesting he should be executed by firing squad or joked that he should be thrown from a plane without a parachute.

In this Jan. 12, 2016, file photo, Army Sgt. Bowe Bergdahl arrives for a pretrial hearing at Fort Bragg, N.C. (Ted Richardson/AP)
Bergdahl lawyers say military judge’s job application posed conflict

A new motion filed in the case of former U.S Army Sgt. Bowe Bergdahl is asking the highest appeals court for the U.S. military to overturn his conviction, citing an alleged conflict of interest involving the judge who originally presided over his sentencing.

In 2017, Bergdahl pleaded guilty to desertion and misbehavior before the enemy. Those charges were based on his actions in 2009 when the 23-year-old private first class left his remote post near the Pakistan border five months into a deployment.

Bergdahl was taken hostage and held for five years by the Taliban. His initial disappearance launched a massive search.

During his first year of captivity, Bergdahl said he was beaten with copper cables, heavy rubber hoses and the buttstocks of AK-47 rifles. The bottoms of his feet were burned with matches and he was forced to watch execution videos while his captors threatened to decapitate him.

He was shackled to a metal bedframe that first year and then transferred to a metal cage where he was kept for the next four years.

In May 2014 he was returned in an exchange for five Taliban detainees at the military prison at Guantanamo Bay, Cuba.

Following his guilty plea, Bergdahl was sentenced to a dishonorable discharge, reduction to E-1 and forfeiture of $10,000 in pay and allowances. He avoided any prison time, though prosecutors had sought more than a decade in part because of wounds sustained by other troops in the search for Bergdahl.

The discharge Bergdahl received disqualified him from any veterans benefits or assistance, which was mentioned in the court filing.

“This torture exacerbated (Bergdahl’s) preexisting mental conditions; as a result, he requires more complicated and more extended medical treatment for his mental health problems,” according to the lawsuit.

‘Repeatedly vilified’

Bergdahl shared his own perspective on why he left his post in multiple interviews with the podcast “Serial” for its second season, which aired starting in late 2015 and focused exclusively on his case.

The then-private told reporters that he felt his unit was being endangered by inept leadership and he was going to leave the post to report the problems.

Following his return from Afghanistan, an Army Sanity Board evaluation determined that when Bergdahl abandoned his post in 2009 suffered from schizotypal personality disorder, Army Times previously reported.

His own attorneys have pointed to the fact that he was released early from U.S. Coast Guard basic training due to a psychiatric incident. That event required him to obtain a waiver to join the Army.

The day of the sentencing, then-President Trump tweeted that the sentence was “a complete and total disgrace to our Country and to our Military,” according to court documents.

Bergdahl also cites the late Sen. John McCain, who simultaneously praised bringing the soldier home but derided the prison swap, “This decision to bring (him) home—and we applaud that he is home—is ill-founded... it is a mistake, and it is putting lives of American servicemen and woman (sic) at risk. And that to me is unacceptable.”

“I would not have made this deal,” McCain said in 2014. “I would hot have put the lives of American servicemen at risk in the future.”

The lawsuit also alleges that McCain “repeatedly pressed the Army concerning its charging decision making, demanding information on the plaintiff’s pay status, captivity-related pay, and other entitlements, closely monitoring the pretrial process of the charges against the plaintiff, and requiring regular progress reports.”

The hearing officer later recommended that Bergdahl’s charges be referred to a misdemeanor-level special court-martial, which would not have had the power to levy even a bad conduct discharge. The officer also noted that neither confinement nor a punitive discharge was warranted.

McCain had a swift response at the time.

“If it comes out that (plaintiff) has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee,” and added that Bergdahl, “is clearly a deserter” before charges had been filed.

‘The government met its burden’

This was not the first time that Bergdahl sought to highlight allegations against Trump, McCain and the judge who oversaw his case.

In 2019, Bergdahl lost an appeal to the Army Court of Criminal Appeals on the same arguments.

“Although there was some evidence of unlawful command influence adduced at trial and in the post-trial process, the government met its burden to demonstrate that an objective disinterested observer would not harbor a significant doubt as to the fairness of the proceedings,” according to the court’s ruling.

But the lone dissenting judge in the three-judge panel, Judge James Ewing, explained that undue command influence did play a part, and he would have set aside the sentencing in light of the president’s comments.

In September 2020 attorneys for Bergdahl filed a motion in the Court of Appeals for the Armed Forces to re-examine the impartiality of Army Col. Jeffrey Nance, the military judge who sentenced Bergdahl. That motion alleges that Nance was in the process of obtaining a job with the Department of Justice and he should have disclosed that information.

The next month, in October 2020, Court of Appeals for the Armed Forces denied the petition.

Nance had applied for a Department of Justice position in 2017 ― on the same day he accepted Bergdahl’s guilty plea. Nance had highlighted in his application his role as judge in the Bergdahl case, using part of his decision in the high-profile case as a writing sample submission.

The DOJ hired Nance as an immigration judge in September 2018.

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