Bowe Bergdahl’s Desertion Conviction Reinstated
Bergdahl spent nearly five years in captivity before the Obama administration traded five Taliban detainees held at Guantanamo Bay for his release…
A federal appeals court has restored Bowe Bergdahl’s court-martial conviction, unanimously ruling that a civilian federal judge overstepped his authority when he wiped it away in 2023. It was a jurisdictional rebuke of an Article III court that tried to override the separate military justice system.
The unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit vacated the lower court’s decision and ordered Bergdahl’s lawsuit dismissed for lack of jurisdiction.
“Because Article III district courts lack jurisdiction on collateral review to vacate court-martial judgments, the District Court lacked jurisdiction over Bergdahl’s claims. Therefore, we remand the case to the District Court to dismiss for lack of jurisdiction.”
Bergdahl walked away from his post in Afghanistan’s Paktika Province without permission on June 29, 2009. He said he intended to reach another headquarters and report what he considered leadership failures within his unit.
Instead, the Taliban-linked Haqqani network captured him. Bergdahl spent nearly five years in captivity before the Obama administration traded five Taliban detainees held at Guantanamo Bay for his release in 2014. Several American service members were injured during the operations launched to find him.
The Army charged Bergdahl with desertion and misbehavior before the enemy. He pleaded guilty to both charges in 2017.
Military prosecutors wanted him imprisoned for 14 years. The military judge, Col. Jeffery Nance, instead sentenced Bergdahl to a dishonorable discharge, reduction to the lowest enlisted rank, and forfeiture of $10,000 in pay and allowances.
The case took another turn after it became public that Nance had applied for a Justice Department job as an immigration judge while overseeing Bergdahl’s proceedings. Nance used his ruling rejecting one of Bergdahl’s claims as the sole writing sample attached to his application. He did not disclose the application to Bergdahl’s attorneys.
In 2023, U.S. District Judge Reggie Walton concluded that the application should have been disclosed. Walton vacated every military court order and ruling entered on or after October 16, 2017, the date Nance submitted his application.
The D.C. Circuit did not decide whether Nance’s failure to disclose the application violated Bergdahl’s rights. Nor did the panel decide Bergdahl’s argument that comments by President Donald Trump improperly influenced his court-martial. The court did not reach those questions because it concluded the district court lacked authority to act in the first place, rendering everything Walton did a nullity regardless of whether he was right on the merits.
The court instead found that Walton crossed a jurisdictional line by vacating the military judgment itself. Under longstanding precedent, only tribunals exercising direct appellate review, including the Army Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and ultimately the Supreme Court, have the authority to set aside a court-martial conviction. A district court on collateral review cannot vacate the judgment outright. That is what Walton did, and that is what the D.C. Circuit reversed.
“The authority to vacate a court-martial judgment belongs to tribunals exercising direct appellate review, not district courts conducting collateral review. Bergdahl’s claim thus conflicts with that longstanding limitation.”
The ruling was unanimous and bipartisan. Judge Robert Wilkins wrote the opinion, joined by Chief Judge Sri Srinivasan, both Obama appointees, and Judge Gregory Katsas, a Trump appointee.
Bergdahl’s attorney, Eugene Fidell, said his legal team was disappointed and was considering its remaining options. Those could include asking the panel to reconsider the decision or seeking review by the Supreme Court.
For now, Bergdahl’s guilty plea and dishonorable discharge are back in place. Fidell’s team has 45 days to seek reconsideration from the same panel or petition the Supreme Court. But the underlying questions, whether Trump’s repeated public calls for Bergdahl’s execution tainted the proceedings and whether Nance’s undisclosed job application was a disqualifying conflict of interest, remain unresolved and may never be answered.
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Comments
He should be in on the end of a crane
No, that’s not good enough.
A slow and painful death still would not be good enough.
I would prefer torture through multiple means and what remains is fed to the pigs.
Give him one more jump, but without a parachute
Good, a Commassar Judge over turned
You keep using that non-word. Once can be typo, twice can still be a typo, but this is at least the sixth time.
Also, assuming you do mean “commissar”, I do not think it means what you think it means.
Don’t bet on that professor, I am more well read on Russian history from the Napoleonic age through WWII than most.
Blame it on auto-cucumber, get it wrong and it takes over. Commissars were the equal political grade of the commander who had full right to change orders in the Soviet Union and other Communists armies.
So I read this, and it seems well written enough but I’m confused as to exactly where things stand:
“The Army charged Bergdahl with desertion and misbehavior before the enemy. He pleaded guilty to both charges in 2017.”
“The military judge, Col. Jeffery Nance, [instead] sentenced Bergdahl to a dishonorable discharge, reduction to the lowest enlisted rank, and forfeiture of $10,000 in pay and allowances.”
“[Civil Judge]Reggie Walton concluded that the application should have been disclosed. Walton vacated every military court order and ruling entered on or after October 16, 2017, the date [Military Judge] Nance submitted his application.”
[The D.C. Circuit]”concluded the district court lacked authority to act in the first place, rendering everything Walton did a nullity regardless of whether he was right on the merits..”
“A federal appeals court has restored Bowe Bergdahl’s court-martial conviction, unanimously ruling that a civilian federal judge overstepped his authority when he wiped it away in 2023.”
So: it would seem we are back to
“The military judge, Col. Jeffery Nance, instead sentenced Bergdahl to a dishonorable discharge, reduction to the lowest enlisted rank, and forfeiture of $10,000 in pay and allowances”>
But this does not address what appears to be Judge Nance’s “misconduct?” while reaching that sentence. So is that original sentence open to challenge by both parties?
A military court ruled on a purely military matter, as provided by military regulations.
Civilian courts have no jurisdiction or standing.
End of line.
They certainly do. Military courts are subject to the law and the constitution. But not every court has jurisdiction; there’s a chain of appeals courts, and if Bergdahl wants to pursue this the case belongs with one of those.
If he wants to appeal, let’s revisit the sentence. 14 years sounds good
A deserved mlfiring squad sounds better.
Private Bowe Bergdahl abandoned his post in a theater of war, an act of desertion in the face of the enemy that, under the Articles of War, demands the ultimate penalty. In the crucible of combat, a soldier’s flight costs the lives of his comrades and threatens the survival of the entire command. To maintain absolute discipline and honor those who stood their ground, justice requires the supreme sentence: death by musketry or hanging.
From what I recall from when I was serving, there ARE paths to report problems within a unit, including bypassing your direct chain of command when the CoC (arguably) IS The Problem.
Walking off your duty post into “Indian Country” during an actual combat situation is pretty much the worst possible way to try to report a problem. Wait until you’re on leave, write a d@mn letter to the JAG, even work up your CoC knowing it won’t be addressed properly just to get it documented.’
Anything else would have been less stupid and irresponsible.
His stupidity endangered (and injured) fellow troops who were forced to try to extract him from captivity.
A simple DD and a fine was getting off easy.
You done messed up son, a regular discharge would cheapen the service of troops who didn’t mess up.
I’m sure the court considered his FAFO of 5 years of torture when considering whether to punish him further.
I notice a lack of reportage as to the specifics of what he alleged was wrong in his original unit – if there was anything legit in his concerns other than just him being an idiot I think that would have been seized on by his supporters.
BTW
Yep go to the Inspector General Office. In the case of a discrimination or sexual harassment go to the EO (Equal Opportunity) Office. For a strait forward crime go the Military Police. Better yet go to your Platoon Sergeant or 1ST Sergeant. If you’ve been in awhile and your current chain is FUBAR go to your prior NCO chain of support for advice.
This dude is POS who endangered lives with his antics. Every hour spent by every Military resource spent looking for this POS was one hour less for those Military resources to be used in the primary mission.
I was an Army contractor fixing satellite transceivers when the shithead went walk-a-bout. All missions were put on hold and everybody was looking for him. Lots were hurt and some were lost looking for him. I got stuck at an OP that was on the border w/ Paki that had no air traffic for 5 weeks. I think almost every soldier in 25ID wanted to string this guy up.
That’s in addition to the 5 terrorists who were released so we could get him back.
Wonder if Obongo also got something on the side from his moslem buddies.
Hmmm. I wonder if this jurisdictional issue might apply to another important issue erroneously put before the courts. I can’t put my finger on it. Might the subject start with an “I”? Hmmm. Maybe.
Indeed. Congress was explicitly empowered to create:
1. Normal Art III Courts (Supreme CT and inferior CTs)
2. Military Courts from ‘to make Rules for the government and regulation of the land and naval forces’.
3. To establish uniform rules on bankruptcy
4. To establish uniform rule of Naturalization (immigration)
Four separate systems. Normal Art III courts for the general population and most matters. As well as three additional systems for specific subgroups/distinct matters; Service Members, Bankruptcy, Immigration with a separate jurisdiction from normal Art III Courts other than potential SCOTUS review and in some circumstances review by inferior Art III Courts of limited scope.
“Naturalization” does not mean “immigration”. The constitution doesn’t give Congress any authority at all over immigration.
But leaving that aside, “rules” does not mean “courts”. Congress has set up administrative systems for immigration and bankruptcy, which includes internal “mock-tribunals”, but in both cases once there is a final decision from those systems that decision is reviewable by the actual courts. The same is true for securities law; Congress set up the SEC, which has an internal tribunal, but once it’s made a final decision if someone doesn’t like it they can go to the real courts.
This scumbag deserves everything bad to happen to him. I hope he can’t sleep at night.
Per a Daily Beast article cited in Wikipedia, “According to soldiers involved in the effort to find Bergdahl, at least six soldiers from his battalion were killed during the search. Retired general Michael Flynn also blamed their deaths on the search for him.”
Let’s start over. We can do so by giving him back to the Taliban.
NOPE! We want to see him enshrined into a pine box and buried deep enough to avoid his stench. The Taliban would merely politicize this scumbag to make a mockery of our Military and its leadership, especially an attempt to mock President Trump. TO HELL WITH THHAT!!!
Not going to happen. Last military execution was in 1961.
Obama and his civilian judges were probably as big a pain in his ass, as the Taliban. Bad karma has perched on his shoulders again, reminding him how stupid his actions were. The soldiers that were hurt looking for him are the ones that paid the biggest price for his piss poor actions. Maybe justice will prevail this time around.
This bozo’s desertion cost several military members their LIVES, and also ultimately led to Obama freeing a bunch of Taliban terrorists in exchange for this deserter, and then as I recall, Obama had the temerity to parade the deserter’s muslim-convert parents at the White House — I mean, ARGGGH!!
While I am glad the military court’s exclusive jurisdiction has now been restored, I still would argue that the sentence was way too lenient.
Why can’t Bergdahl take his case to the correct court this time, and get these questions answered? They’re good questions and deserve answers.