Navy Seal testifies about wound during Bergdahl search
Posted June 21
FORT BRAGG, N.C. — A former Navy Seal testified Wednesday that his military career ended when he was shot in the leg during a hastily planned mission to find Army Sgt. Bowe Bergdahl after the soldier left his post in Afghanistan.
During a pre-trial hearing in Bergdahl's court-martial on charges of desertion and misbehavior before the enemy, retired Senior Chief Petty Officer James Hatch said his team had about 90 minutes to plan their mission and board helicopters after receiving information about Bergdahl's purported whereabouts shortly after he disappeared in 2009. While pursuing enemy fighters on foot, Hatch was hit by fire from an AK-47. Hatch says he survived because members of his team quickly applied a tourniquet while waiting for a medical helicopter.
"They saved me from bleeding to death for sure," he testified during the pretrial hearing.
Hatch, who entered the courtroom with a service dog and a limp, said he's had 18 surgeries because of the wound.
Bergdahl left his remote post in Afghanistan in 2009 and was subsequently held by the Taliban and its allies for about five years. The military probe of Bergdahl began soon after he was freed from captivity on May 31, 2014, in exchange for five Taliban prisoners.
Former President Barack Obama was criticized by Republicans, who claimed he jeopardized the nation's security with the trade. While on the campaign trail last year, President Donald Trump often called Bergdahl a traitor and said he should have been shot as such.
Col. Jeffery Nance, the judge overseeing the court-martial, told defense attorneys they can ask potential military jurors about Trump on a lengthy written questionnaire. Defense lawyers have argued Trump's criticism will prevent Bergdahl from getting a fair trial.
"Key to that is the whole set of issues surrounding President Trump's outrageous comments throughout the course of his successful campaign for the White House," defense attorney Eugene Fidell said.
Prosecutors have objected to 17 of the approximately 40 questions, including ones asking how prospective panel members voted in the presidential election.
"I'm going to let you ask pretty much all the questions but with some changes to address the government's concerns," Nance said.
Nance asked for further written arguments before the questionnaire is finalized. The judge previously said he would allow the defense wide leeway to question potential jurors, even though he rejected in February a motion to dismiss the case over Trump's comments.
Prosecutors want to use the injuries to Hatch and others as evidence during sentencing if Bergdahl is convicted. Nance has already ruled that the injury evidence can't be used during the guilt-or-innocence phase of the trial scheduled for October.
A legal scholar not involved in the case, Eric Carpenter, said the decision on the injuries could be pivotal.
"This evidence has already been excluded from the guilt phase of the trial, and if it is excluded during the sentencing phase, the heart of the government's case will be gone," said Carpenter, a former Army lawyer who teaches law at Florida International University. "This might make the government more receptive to a deal."
Fidell declined to say after the hearing whether his client is interested in a plea bargain, but for the first time, the defense hinted that they might advise Bergdahl to plead guilty to the lesser charge of being absent without leave for three hours if the court could assure them that the desertion charge would be dropped because Bergdahl became a prisoner captured by the Taliban.
"Obviously, to have an intelligent conversation with the client, we have to be in a position to inform him of what his exposure would be if he decided that he wanted to plead guilty to an AWOL of some duration," Fidell said.
Nance said Bergdahl can choose to plead guilty to being AWOL but that prosecutors could continue pursuing the more serious desertion charge if they weren't satisfied. The judge said he would rule later on the defense's arguments about the duration of Bergdahl's absence.
Fidell said the defense must gather more information about the mission the Hatch was on when he was wounded before removing their objection to his testimony.
Nance said he also would rule later on a motion to dismiss the misbehavior before the enemy charge, which could land Bergdahl in prison for life. Defense attorneys say prosecutors chose the wrong building blocks for the offense because the actions cited in the charge wouldn't be independently criminal, an argument that prosecutors dispute.
Bergdahl, who has been assigned to desk duty at a Texas Army base, has said he walked off his post to cause alarm and draw attention to what he saw as problems with his unit.
He left the courthouse on Fort Bragg without talking with reporters. A closed-door hearing was held Wednesday afternoon to go over classified material in the case.