Judge blocks evidence of soldiers' wounds in Bergdahl court-martial
Posted December 16, 2016
FORT BRAGG, N.C. — A military judge overseeing the court-martial of Army Sgt. Bowe Bergdahl ruled Friday that he will not allow any evidence of soldiers being wounded while searching for him.
The judge, Army Col. Jeffery Nance, said at a pretrial hearing that Bergdahl bears some responsibility for risky search missions triggered by him walking off his post in Afghanistan in 2009, but he later decided that evidence of horrific injuries could unfairly prejudice jurors.
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.
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.
"Sgt. Bergdahl is not responsible for a never-ending chain of events," Nance said during Friday's hearing, "but he is responsible for a certain amount of that chain of events."
The judge said prosecutors have other evidence they can use to show endangerment.
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.
Defense attorneys said they now have computers and software to review the more than 300,000 documents, consisting of about 1.3 million pages, in the case. However, it will be a couple of weeks before the software is up and running and the defense attorneys are trained to use it.
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, asked Obama to pardon him before leaving office. His attorneys have said they plan to file a motion in the coming weeks to have charges dropped because of Trump's public statements that Bergdahl is a "no-good traitor" and should have been executed.