Facing desertion trial, Bergdahl asks Obama for pardon

Sgt. Bowe Bergdahl, the former U.S. prisoner of war in Afghanistan who was freed in a 2014 swap for five Taliban detainees, has asked President Barack Obama to pardon him before leaving the White House to President-elect Donald Trump, who has called the soldier “a no-good traitor who should have been executed.”

After the presidential election, Bergdahl’s legal team submitted copies of a clemency application to the White House, the Justice Department and the Pentagon, according to White House and Justice Department officials.

It requested a pre-emptive pardon that would avert Bergdahl’s court-martial trial on charges of desertion and misbehaving before the enemy that endangered fellow soldiers. The trial is scheduled to begin April 18.

Bergdahl left his outpost in Afghanistan without permission in 2009 and was captured by militants, prompting a dangerous but fruitless search. His captors held him in brutal conditions for five years, including locking him in a cage and in darkness for lengthy periods.

The Obama administration eventually secured his release in exchange for sending five high-level Taliban detainees from the Guantánamo Bay prison to Qatar, which agreed to monitor them and not let them travel.

That deal set off intense political controversy. Against that backdrop, an Army investigation last year recommended against punishing Bergdahl with jail time, concluding that he had acted under good but delusional motivations and noted his suffering in captivity. But in December 2015, a commander instead ordered him prosecuted in a general court-martial, where a conviction could yield a life sentence.

Eugene R. Fidell, Bergdahl’s lead defense lawyer, declined to comment on the pardon petition. But he said if the case is still pending on Inauguration Day, Jan. 20, he will file a motion to have it dismissed, arguing that a fair military trial will be impossible after Trump becomes commander in chief.

At rallies, Trump repeatedly brought up the prisoner exchange as a bad deal. At a town hall-style meeting in August 2015, for example, he called Bergdahl a “dirty, rotten traitor” and pantomimed shooting him. Trump also falsely claimed that Americans were killed searching for Bergdahl and that the five Taliban ex-detainees were back on the battlefield.

Fidell has also complained about comments by Sen. John McCain, R-Ariz., who, as Armed Services Committee chairman, oversees confirmation hearings for commissioned officers. He called Bergdahl a deserter and vowed to hold an oversight hearing if he went unpunished.

“I have grave concerns as to whether Sergeant Bergdahl can receive a fair trial given the beating he has taken over many months from Mr. Trump, who will be commander in chief, as well as Senator McCain’s call for a hearing in case Sergeant Bergdahl is not punished,” Fidell said. “It is really most unfair.”

When Bergdahl was released in May 2014, Obama appeared alongside his parents in the Rose Garden. The national security adviser, Susan E. Rice, said he had served with “honor and distinction.” His hometown in Idaho prepared a celebration. But the deal swiftly degenerated into a legal and political debacle.

The administration transferred the Taliban detainees without obeying a statute requiring it to notify Congress 30 days before the transfers. It said acting without delay was necessary to protect Bergdahl’s life and argued that disregarding the statute in such circumstances was lawful, but Republicans maintained that the transfer was illegal.

In addition, former soldiers came forward to describe the circumstances of his capture, accusing him of desertion. That fueled Republican complaints that sending the Taliban detainees to Qatar had been too steep a price.

As furor swelled, the narrative about Bergdahl darkened. Some former soldiers alleged that he had been trying to join the Taliban and that five to seven Americans had died searching for him. Those allegations, however, proved false.

in June 2014, the secretary of defense at the time, Chuck Hagel, testified that, “In all of our reports, I have seen no evidence that directly links any American combat death to the rescue or finding or search of Sergeant Bergdahl.” The military investigation also spotlighted the absence of such evidence.

Still, prosecutors have sought to introduce evidence in the trial that several soldiers were injured during the search. The defense has sought to block that evidence, arguing, among other things, that the real cause of the two most serious injuries prosecutors cited was botched planning for a particular raid. A judge has not yet ruled on that dispute.

The Army investigation concluded in 2015 that Bergdahl had left his outpost intending to hike to another military post and report to an officer there on perceived wrongdoing involving his unit. A sanity board found that he had been suffering from a “severe mental disease or defect” at the time.

Source: TheState.com