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  • #46
    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.


    Military Times
    Oscar winner shields Bergdahl interviews from U.S. lawyers

    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.


    Military Times
    Lawmakers oppose request to pardon POW Bowe Bergdahl

    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.

    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.
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    • #47
      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.


      Military Times
      Oscar winner shields Bergdahl interviews from U.S. lawyers

      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.


      Military Times
      Lawmakers oppose request to pardon POW Bowe Bergdahl

      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.

      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.
      I wear a Fez. Fez-es are cool

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      • #48


        By COREY DICKSTEIN | STARS AND STRIPES
        Published: December 20, 2016

        WASHINGTON — President Barack Obama has granted 78 people pre-Christmas pardons, more than doubling the amount allowed during his eight-year tenure. But accused Army deserter Sgt. Bowe Bergdahl was not among them.

        The White House announced the pardons Monday afternoon alongside Obama’s decision to commute the sentences of 153 other individuals. White House Counsel Neil Eggleston left the door open for additional pardons in Obama’s remaining month in office, perhaps leaving hope for Bergdahl that the president will grant his pardon petition that would spare him a court-martial in April on charges of desertion and misbehavior before the enemy.

        “The president continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the president will issue more grants of both commutations and pardons before he leaves office,” Eggleston wrote Monday in the statement.

        The vast majority of the pardons granted Monday were to drug offenders who had already completed their sentences. None of the pardons were granted to individuals, like Bergdahl, who had not already been convicted of a crime, which is possible for a president to do but extremely rare.

        Several experts on military law and pardon history have told Stars and Stripes that a pardon for Bergdahl is unlikely. The soldier’s lawyer Eugene Fidell declined to comment Tuesday on the pardon request.
        I wear a Fez. Fez-es are cool

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        • #49
          Originally posted by Forever_frost View Post
          http://www.stripes.com/news/bergdahl...-list-1.445368

          By COREY DICKSTEIN | STARS AND STRIPES
          Published: December 20, 2016

          WASHINGTON — President Barack Obama has granted 78 people pre-Christmas pardons, more than doubling the amount allowed during his eight-year tenure. But accused Army deserter Sgt. Bowe Bergdahl was not among them.

          The White House announced the pardons Monday afternoon alongside Obama’s decision to commute the sentences of 153 other individuals. White House Counsel Neil Eggleston left the door open for additional pardons in Obama’s remaining month in office, perhaps leaving hope for Bergdahl that the president will grant his pardon petition that would spare him a court-martial in April on charges of desertion and misbehavior before the enemy.

          “The president continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the president will issue more grants of both commutations and pardons before he leaves office,” Eggleston wrote Monday in the statement.

          The vast majority of the pardons granted Monday were to drug offenders who had already completed their sentences. None of the pardons were granted to individuals, like Bergdahl, who had not already been convicted of a crime, which is possible for a president to do but extremely rare.

          Several experts on military law and pardon history have told Stars and Stripes that a pardon for Bergdahl is unlikely. The soldier’s lawyer Eugene Fidell declined to comment Tuesday on the pardon request.
          Where are the "checks and balances"? If this statement is true and the POTUS is only allowed so many pardons, why the F is he allowed to just write them at his own free will? Same goes with the executive orders. Why is no one putting this POS in check?

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          • #50
            Originally posted by TX_92_Notch View Post
            Where are the "checks and balances"? If this statement is true and the POTUS is only allowed so many pardons, why the F is he allowed to just write them at his own free will? Same goes with the executive orders. Why is no one putting this POS in check?
            The power to pardon was given to the president because the other rulers of nations around the world at the time were kings and they had that power. It was intended to be the equal to the power of kings and it is unlimited and absolute. A system of checks and balances was set up around it simply to justify adding a few more bureaucrats to the government pay role and in no way limits the presidents power to grant a pardon. The president can do anything that they want to do when it comes to giving pardons and there is ABSOLUTELY NOTHING that can be done about it. Obama could issue a blanket pardon freeing every black left handed inmate in federal prison without even mentionin their names and they would have to be freed by sundown.
            Magnus, I am your father. You need to ask your mother about a man named Calvin Klein.

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            • #51
              Keeps getting better. HE's still breathing.

              Essentially, the Army command agreed with the November sentence and nothing has happened.

              A senior U.S. military commander is endorsing the decision to spare Army Pvt. Bowe Bergdahl prison time for abandoning his post in Afghanistan, endangering military comrades who participated in the lengthy search for him.


              WASHINGTON — A senior U.S. military commander is endorsing the decision to spare Army Pvt. Bowe Bergdahl prison time for abandoning his post in Afghanistan, endangering military comrades who participated in the lengthy search for him.

              Army Gen. Robert Abrams, head of U.S. Army Forces Command, approved the court-martial sentencing handed down last November. Bergdahl was reduced in rank from sergeant to private and ordered to forfeit $1,000 a month in pay for 10 months. The judge also gave him a dishonorable discharge.

              The fine and rank reduction were effective two weeks after the judge’s sentence was delivered. The case is now referred to the Army Court of Criminal Appeals at Fort Belvoir, Virginia, which automatically reviews any punitive discharges.

              Bergdahl was captured by the Taliban and held for five years.
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              • #52
                Originally posted by Forever_frost View Post

                Bergdahl was captured by the Taliban and held for five years.
                Ok so he had the opportunity to escape and return, but didn't? Or he willingly went and joined them and says he was "captured".
                WH

                Comment


                • #53


                  28 Jun 2019
                  Military.com | By Patricia Kime
                  FORT BELVOIR, Virginia -- The Army's Court of Criminal Appeals heard arguments Thursday in the ongoing case of Bowe Bergdahl, with the former soldier's attorneys contending that the case should be reconsidered or Berghdahl should be granted clemency because President Donald Trump's comments and tweets tainted the proceedings.

                  Bergdahl, the soldier who left his post in Afghanistan in 2009 and was held captive by a Taliban affiliate for five years, was sentenced in 2017 to reduction in rank from sergeant to private, forfeiture of $10,000 in pay and a dishonorable discharge.

                  But he received no prison time -- a decision Trump called Nov. 3, 2017 on Twitter "a complete and total disgrace to our Country and to our Military."

                  In remarks in the White House Rose Garden on Oct. 16, 2017, Trump also referred to statements he made as a candidate about Bergdahl, saying "I think people have heard my comments in the past."

                  These events constitute "apparent" unlawful command influence, meaning the remarks influenced the case's decisions or outcomes, argued Bergdahl's attorney, military law expert and Yale University lecturer Eugene Fidell.

                  Fidell cited several military convictions that were overturned following statements by public figures that created an "appearance of unlawful command influence." During Bergdahl's case, he said, the soldier did not "get a review by a convening authority liberated from the toxic comments of the president of the United States."

                  As a candidate, Trump suggested Bergdahl should be executed by firing squad, pushed out of an airplane without a parachute or dropped back into Afghanistan.

                  "Let them have him. That's cheaper than a bullet," Trump said at the time.

                  But while his comments as a private citizen are protected as free speech, as president, Trump continued to disparage Bergdahl, Fidell argued. And as commander in chief, Trump exerted undue influence on the case, he said.

                  "The president has tainted everything," Fidell told the three-judge panel, led by Judge Gary Saladino.

                  During Bergdahl's original court-martial proceedings, Judge Army Col. Jeffrey Nance weighed Trump's words and considered whether his remarks as a candidate, followed by the reference to them in the Rose Garden, constituted unlawful command influence.

                  At the time, Fidell argued that Trump's confirmation of his past statements produced a "chilling effect" on the military justice system, and he pressed for no jail time for his client as a result.

                  The defense team also appealed for leniency based on the harsh treatment Bergdahl had endured in captivity, which included being caged, tortured and beaten.

                  Nance agreed to be lenient, opting not to send Bergdahl to jail. But he added that he was not influenced by the president's opinion, and he "held no fear of any repercussions from anyone" who did not agree with the sentence.

                  The lack of jail time provoked outrage from the president. And the case continues to needle him.

                  On Twitter on April 26, Trump wrote that his administration did not pay money to North Korea for the return of Otto Warmbier.

                  "Not two Million Dollars, not anything else. This is not the Obama Administration that paid 1.8 Billion Dollars for four hostages, or gave five terroist [sic] hostages plus, who soon went back to battle, for traitor Sgt. Bergdahl!" Trump tweeted.

                  On Thursday, government attorneys argued that, in light of the case and its results, Trump's comments simply do not constitute unlawful command influence. They said since president did not personally convene Bergdahl's court martial, he legally was not in a position to exert that kind of sway on the case.

                  Army Maj. Catharine Parnell also said Bergdahl, who pleaded guilty and, according to Parnell, requested his dishonorable discharge, "got what he asked for -- expedited processing."

                  If Bergdahl had any standing for requesting a new trial, Parnell said, it should be under the "rubric of due process," which generally requires fairness in government proceedings, and not for apparent unlawful command influence.

                  "We just don't think [unlawful command influence] applies to" Trump in this case, Parnell said. "If the Uniform Code of Military Justice was to apply to the president, it should be in toto."

                  "Was there an effect of the 3 Nov. 2017 tweet on the appellate post-trial process? What the government is arguing is there simply was not," Parnell added. "If a tweet extends that far, our system can never correct this."

                  In May 2017, the U.S. Air Force Court of Appeals reversed a sexual assault conviction in the case U.S. v. Boyce, deciding that statements by then Sen. Claire McCaskill, D-Missouri, and Sen. Kirsten Gillibrand, D-New York, over the "Marines United" scandal created an appearance of unlawful command influence.

                  U.S. v. Boyce was cited heavily in Thursday's arguments, with Fidell saying that without Trump's comments, Bergdahl might have been just one of the roughly 600 soldiers court-martialed each year and "no one would have known his name."

                  "You can't put Humpty back together again in terms of Sergeant Bergdahl. He is a known figure in the U.S. because the president disparaged him," Fidell said.

                  Attorneys also cited rulings regarding the criminal prosecutions of officers and crew members in the separate deadly collisions of the Navy destroyers John S. McCain and Fitzgerald -- cases in which both Chief of Naval Operations Adm. John Richardson and Vice CNO Adm. Bill Moran were found to have engaged in apparent unlawful command influence. The judge said remarks made regarding negligence prior to any criminal cases risked tainting the proceedings.

                  In the Bergdahl hearing Thursday, the judges did not give any indication which way they might decide the case. They raised questions about the reach of the president's alleged command influence and wondered whether the defense's request to reconvene the case made sense.

                  "If the president's tweet cast a shadow downstream," Judge Paula Schasberger said, addressing Fidell. "Are we a part of that shadow? What is your position. Are we tainted?"

                  To Parnell's arguments about the fact that the president couldn't be held liable for unlawful command influence because he didn't convene Bergdahl's trial, Schasberger said, "I'm not going to lie. I'm trying really hard to keep an open mind. But I'm looking at the plain text and I'm not seeing why the president would be written out."

                  Bergdahl was not present in the courtroom and Fidell declined to disclose his client's location to Military.com. The controversial figure was the target of much animus after his return, which was negotiated by the administration of President Barack Obama. Five members of the Taliban who were held at the military detention center in Guantanamo Bay, Cuba, were exchanged for his release.

                  The search to find Bergdahl, who said he left his post to call attention to problems within his unit, involved thousands of troops and hundreds of hours of drone time. During his trial, military officials said several troops were wounded in firefights that Nance said would not have occurred if Bergdahl had not left his post in Paktika province near the Afghanistan-Pakistan border.

                  The Army Court of Criminal Appeals judges did not say when they would issue a decision on the Bergdahl appeal. If they find in favor of Bergdahl, they could require a new convening authority or grant clemency. If they side with the government, Bergdahl has the option of appealing to the Court of Appeals for the Armed Forces.

                  Fidell said he'd like to see a ruling in Bergdahl's favor.

                  "When the president of the United States is the perpetrator of unlawful command influence, it is very, very important," Fidell said.

                  -- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter at @patriciakime.
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                  • #54
                    U.S. v. Boyce was cited heavily in Thursday's arguments, with Fidell saying that without Trump's comments, Bergdahl might have been just one of the roughly 600 soldiers court-martialed each year and "no one would have known his name."

                    "You can't put Humpty back together again in terms of Sergeant Bergdahl. He is a known figure in the U.S. because the president disparaged him," Fidell said.
                    Drop him and his lawyer back in the sandbox.
                    G'Day Mate

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                    • #55
                      Was his attorney blitzed out of his mind the day Obama gave a speech with Bergdahl's parents?

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                      • #56


                        Bowe Bergdahl loses unlawful command influence appeal based on Trump tweets

                        The Bowe Bergdahl case was briefly back in court this summer, as attorneys for the former soldier argued that President Donald Trump’s comments about a conviction and prison time amounted to undue command influence and interfered with his right to a fair trial.

                        The Army Court of Criminal Appeals convened a three-judge panel to hear the case, and in a 2-1 ruling affirmed Bergdahl’s guilty plea and previous sentence — a reduction in rank to private, a $10,000 fine and a dishonorable discharge.

                        “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,” the Army appeals court opinion reads.

                        In a dissenting opinion, Army Judge James Ewing wrote that undue command influence did play a part in sentencing, adding that he would have set aside the dishonorable discharge. That conclusion was largely based on the president’s past statements and a day-of-sentencing statement that labeled Bergdahl “a complete and total disgrace."

                        Ewing noted that there is “no perfect resolution” in Bergdahl’s case, as Trump’s influence cannot be circumnavigated by moving the case to a different convening authority, because the president is the highest in the chain of command.

                        The best guidance on resolution was from earlier phases in Bergdahl’s investigation and trial, Ewing wrote.

                        “Specifically, the Article 32 preliminary hearing officer’s recommendation that appellant’s case be referred to a ‘straight special’ court-martial not empowered to adjudge a discharge, and that jail time would be inappropriate, was rendered in October of 2015,” Ewing’s dissent reads. “The AR 15-6 investigating officer, [Maj. Gen. Kenneth Dahl], likewise recommended no jail time for appellant during the same time period.”

                        “Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet," Ewing added.

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                        Bergdahl, then a sergeant, pleaded guilty in 2017 to desertion and misbehavior before the enemy after leaving his post in 2009 while deployed to Afghanistan’s Paktika province, with 4th Brigade Combat Team, 25th Infantry Division.

                        He was quickly captured by insurgents and held hostage until 2014, when the Obama administration negotiated his return in exchange for five Guantanamo Bay detainees.

                        Over the course of Bergdahl’s repatriation and subsequent trial, the president periodically weighed-in on the situation.

                        “In the old days when we were strong and wise, we [would] shoot a guy like that,” Trump said in 2015, during his campaign for president.

                        After taking office, Trump’s commentary on Bergdahl’s case decreased. But during an October 2017 press conference in the White House Rose Garden, the president remained committed to his past assessment of the situation.

                        “I think people have heard my comments in the past," he said at the time.


                        During his trial, Bergdahl’s legal team argued that Trump’s comments tainted the process. The judge, Army Col. Jeffrey Nance, declared them mitigating evidence, which can reduce punishment in sentencing.

                        Eugene Fidell, a Yale Law School lecturer and former Coast Guard judge advocate who represented Bergdahl, did not immediately respond to a request for comment Wednesday afternoon.

                        During his five years in captivity, the Taliban subjected Bergdahl to torture that included long periods in darkness, beatings with a copper cable, being chained, held in a cage and threatened with execution after trying to escape roughly a dozen times.

                        “In the beginning of my captivity, after my first two escape attempts, for about three months I was chained to a bed spread-eagle and blindfolded,” Bergdahl wrote in a note made public by his lawyer during the trial process.

                        “Around my ankles where the chains were, I developed open wounds. ... During these months some of the things they did was beat the bottoms of my feet and parts of my body with a copper cable.”

                        Bergdahl has kept a low profile since returning from captivity, only rarely offering explanations for his decision to leave his post.

                        In 2016, documents released by Bergdahl’s attorneys explained that he left his post to draw attention to what he saw as bad decisions by officers above him. Those documents also showed that he was diagnosed with a psychiatric disorder.

                        Bergdahl told the general who investigated his case — Maj. Gen. Kenneth Dahl — that he hoped to leave his base and make it to a larger base in order to impress a high-ranking officer.

                        “So, the idea was to — it was— literally, it was a sacrificial — it was a self-sacrifice thing,” Bergdahl said, according to the transcript of a 2014 interview during the investigation.

                        A 2015 document also shows that an Army Sanity Board evaluation determined that Bergdahl suffered from schizotypal personality disorder when he abandoned his post.
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