Sentencing to begin in Bowe Bergdahl's court-martial

The puzzling saga of Army Sgt. Bowe Bergdahl, who abandoned his command post in Afghanistan eight years ago and was swiftly taken captive by the Taliban, draws closer to an end this week as a military judge decides his punishment.

The 31-year-old from Hailey, Idaho, pleaded guilty last week to two charges: walking off his combat outpost in Afghanistan in 2009 and endangering the lives of his fellow troops. It was a “naked plea,” meaning he reached no deal with prosecutors to limit his punishment.

The desertion charge carries a punishment of up to five years. The other charge, “misbehavior before the enemy,” is more serious and carries a potential sentence of life imprisonment.

When his defense team squares off with prosecutors at a sentencing hearing here Wednesday — after being postponed Monday — it is likely to focus on Bergdahl’s suffering. He was caged, tortured and beaten by the Taliban during five grueling years in captivity. Prosecutors are expected to focus on the danger to which he exposed his fellow platoon members who went looking for him.

The judge, Col. Jeffery Nance, has already ruled that evidence of injuries to two men — Sgt. 1st Class Mark Allen and retired Senior Chief Petty Officer James Hatch, a Navy SEAL — would be allowed during sentencing.

Allen was shot in the head on a mission to find Bergdahl, an injury that left him unable to walk or speak. Hatch was hit in the leg by fire from an AK-47 on another mission and has said his comrades braved enemy fire to keep him from bleeding to death.

“At the very heart of this case is a soldier who breached the most basic duty of being a soldier and did it in a combat zone that resulted in putting his own comrades in jeopardy,” said Geoffrey Corn, a retired lieutenant colonel who is professor at South Texas College of Law Houston.

Corn said he still remembers the first general order he was taught when he joined the Army in 1983: “Guard everything within the limits of your post and quit your post only when properly relieved. “

“It is the most fundamental duty of a soldier,” he said. “Where the judge is going to come out on this is anyone’s guess. I could see everything from a dishonorable discharge and no confinement all the way to a hefty period of confinement.”

Retired Army Maj. Gen. Walter Huffman, a law professor at Texas Tech University in Lubbock, said Bergdahl’s suffering at the hands of the Taliban was likely to mitigate the punishment.

“Without discipline, the Army cannot accomplish its mission,” he said. “If I were the military judge looking at this kid, I’m going to punish him. But I’m not going to punish him as severely as I would had he not been through hell on Earth. I think I would mitigate based on his captivity.”

One point of contention is likely to be Bergdahl’s level of contrition. When he pleaded guilty last week, he told the judge that his actions were inexcusable. Yet in an interview published Sunday, Bergdahl, who has worked on administrative duty at an army base in San Antonio since his return, indicated that his predicament upon returning to the U.S. was worse than his time as a prisoner of war.

“At least the Taliban were honest enough to say, ‘I’m the guy who’s gonna cut your throat,’” Bergdahl told the Sunday Times of London. “Here, it could be the guy I pass in the corridor who’s going to sign the paper that sends me away for life.”

Bergdahl was captured within hours of walking off his remote post in eastern Afghanistan’s Paktika province near the border with Pakistan in June 2009. He had intended to hike to another base nearly 20 miles away to alert other commanders to what he saw as problems within his unit, he said later in an interview with the podcast “Serial.”

During his captivity, he was imprisoned in a metal cage, blindfolded, tied to a bed and beaten with a rubber hose and copper cables.

“I'd wake up, and it's just so dark. I would wake up not even remembering what I was,” he said on “Serial.” “You know how you get that feeling, you can't remember what that word is on the tip of your tongue? That happened to me. Only it was like, what am I?”

Political controversy has swirled around the case ever since Bergdahl was released in May 2014 as part of a prisoner swap for five Taliban commanders detained at the U.S. jail in Guantanamo Bay, Cuba.

Embracing Bergdahl’s parents in the Rose Garden, President Obama announced the soldier’s release as a good news story, saying that “the United States of America does not ever leave our men and women in uniform behind.” But House Republicans — and some Democrats — swiftly passed a resolution condemning the Obama administration’s failure to notify Congress before releasing the Taliban prisoners and expressing national security concerns over their release.

Last year, then-presidential candidate Donald Trump called Bergdahl a “dirty rotten traitor” who deserved to be executed by firing squad or ejected from a plane without a parachute — comments that the judge presiding over the case has called “disturbing and disappointing.”

Bergdahl’s defense team has repeatedly tried to have the case dismissed, arguing that the president’s criticisms of Bergdahl have made a fair trial impossible: As commander in chief of the armed forces, everybody involved in the military hearing — including the judge — answers to him.

Nance, however, has argued that Trump’s comments did not amount to an unlawful command influence because they were made before he was elected.

“The multitude of comments made by Candidate Trump is troubling,” Nance said in an eight-page decision this year. “Doubtless, they were made without consideration of their possible impact on the trial of the accused. However, they were clearly made to enflame the passions of the voting populace against his political opponent and in Mr. Trump's favor."

When questioned about the case last week at the Rose Garden, Trump said he could not comment. He then added, “I think people have heard my comments in the past.”

Whatever the sentence, Trump’s statements are likely to lead to a lengthy appeals process, said Corn, the law professor.

“No matter what happens, Bowe Bergdahl is going to be convinced that he is paying the price for inflammatory, poorly informed statements by the commander in chief,” he said. “He may very well get a receptive appellate court that says, you know, we’ve never had to deal with this issue because we never had a president that was this foolish. Who knows?”

Jarvie is a special correspondent.

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