Bergdahl seeks pardon from Obama to avert desertion trial

[rooster59]

Bergdahl seeks pardon from Obama to avert desertion trial 

ERIC TUCKER, Associated Press
JONATHAN DREW, Associated Press

 

WASHINGTON (AP) — U.S. Army Sgt. Bowe Bergdahl, the former prisoner of war who's accused of endangering comrades by walking off his post in Afghanistan, is asking President Barack Obama to pardon him before leaving office.

 

White House and Justice Department officials said Saturday that Bergdahl had submitted copies of the clemency request seeking leniency. If granted by Obama, it would allow Bergdahl to avert a military trial scheduled for April where he faces charges of desertion and misbehavior before the enemy. The misbehavior charge carries a maximum penalty of life in prison.

 

If the pardon isn't granted, Bergdahl's defense team said it will expand its legal strategy to the new administration by filing a motion arguing President-elect Donald Trump violated his due process rights with scathing public comments about the case.

 

The pardon request to Obama, first reported by The New York Times, was confirmed by White House and Justice Department officials who weren't authorized to discuss the matter by name.

 

Bergdahl, of Hailey, Idaho, walked off his post in Afghanistan in 2009 and was held captive by the Taliban and its allies for five years.

 

The Obama administration's decision in May 2014 to exchange him for five Taliban prisoners held at Guantanamo Bay, Cuba, prompted criticism that included some Republicans accusing Obama of jeopardizing nation's safety. Some lawmakers were outraged that the administration didn't give Congress a 30-day notice about transferring the detainees, as required by law.

 

Throughout his presidential campaign, Trump was Bergdahl's most vocal critic, saying repeatedly the soldier is a traitor who would have been executed in the "old days."

 

During a July speech in Indiana, Trump lamented that Bergdahl could wind up with a light punishment.

 

"Remember the old days? A deserter, what happened?" he said before pantomiming pulling a trigger and adding: "Bang."

 

Bergdahl's lead defense lawyer, Eugene Fidell, declined to comment Saturday on the pardon request.

 

But Fidell said he plans to file a motion seeking dismissal of the charges against Bergdahlshortly after the January inauguration, arguing Trump violated Bergdahl's constitutional due-process rights.

 

The defense has been noting Trump's comments about Bergdahl in what they've dubbed the "Trump Defamation Log." A version included in the court record lists 40 such instances as of August.

 

"All of these things put together and repeated rally upon rally for basically a year have a cumulative effect that I think is totally at odds with the right to a fair trial," Fidell said in a phone interview.

 

A spokeswoman for Trump didn't respond to emails seeking comment.

 

There is precedent for a military judge to decide a president's comments have tainted a military prosecution.

 

In 2013, a Navy judge cited comments by Obama when he issued a pretrial order that two defendants in sexual assault cases couldn't be punitively discharged if they were found guilty. The judge wrote that Obama's public comments about cracking down on sexual assault, specifically referencing dishonorable discharges, appeared to be demand particular results from military courts.

 

"People in the military do what their commanders tell them to do," said Eric Carpenter, a law professor at Florida International University who served as an Army lawyer. He said there's a risk that military jurors could punish Bergdahl because they think it's what their commander-in-chief wants, rather than deciding strictly on the evidence.

 

Carpenter said he'd be surprised if the Army judge dismissed the charges entirely, but he could give the defense leeway to question potential jurors and reject them based on their answers about Trump.

 

Bergdahl, who faces trial at Fort Bragg, has said he walked off his post in Afghanistan because he wanted to cause an alarm and draw attention to what he saw as problems with his unit.

 

 

-- © Associated Press 2016-12-04

[Ulysses G.]

I really think this deserter has been through enough and should not be charged. However, Obama should keep his nose out of it. He is responsible for one of the stupidest trades in history to get Bergdahl back.

[Pimay1]

1 hour ago, Ulysses G. said:

However, Obama should keep his nose out of it. He is responsible for one of the stupidest trades in history to get Bergdahl back.

I agree with this part of your post however, in my opinion if this deserter is pardoned it would be a slap in the face of all the service men of all countries who have bravely fought and given their lives in Afghanistan. He should not be pardoned.

[Ulysses G.]

I understand.

[RuamRudy]

1 hour ago, Pimay1 said:

I agree with this part of your post however, in my opinion if this deserter is pardoned it would be a slap in the face of all the service men of all countries who have bravely fought and given their lives in Afghanistan. He should not be pardoned.

 

There is a fascinating series of podcasts on the whole affair that is worth a listen to (Serial Podcast) - I think it tries to be impartial and is not overly sympathetic to him, but my take on it, having listened to them, is that he was foolish and a bit delusional in that he thought he was doing something that would be to the immense benefit of his platoon.

 

But I agree that he took a decision that he was not authorised to take, and the danger he put other in, and the cost of bringing him home, was immense (although, according to the podcast, no US lives could be attributed to the hunt for him). I don't think he should be pardoned but I wonder if a token sanction should be applied - the 5 years he spend in captivity sound like hell.

[geriatrickid]

Hello, where is this dessertion label coming from? The man has not been convicted of the charge. He hasn't even gone to trial.  The circumstances of the case are  complex and there are multiple  conflicting renditions of "fact". I  suggest that people hold off until the man has his day before the military tribunal.

[thaibeachlovers]

To allow this man off would be an insult to every guy going in harm's way and doing their duty. That he was not tried and imprisoned on return is a slap in the face to every grunt sitting in a hole getting shot at by the enemy, but not running away.

 

Anyway, we should all know he was rescued by Obama because Obama thought he would be getting a hero's welcome, and by implication Obama would look good. Little did he know ( when he should have- who was the idiot advising Obama on this? ) what the real reaction would be! Perhaps that is because the closest Obama has got to harm's way is living in Chicago.

[thaibeachlovers]

6 minutes ago, geriatrickid said:

Hello, where is this dessertion label coming from? The man has not been convicted of the charge. He hasn't even gone to trial.  The circumstances of the case are  complex and there are multiple  conflicting renditions of "fact". I  suggest that people hold off until the man has his day before the military tribunal.

The guys that were in the field with him said he was a deserter. I'll take their word for it.

[Srikcir]

40 minutes ago, geriatrickid said:

Hello, where is this dessertioAny member of the armed forces who before or in the presence of the enemyn label coming from? The man has not been convicted of the charge. He hasn't even gone to trial.  The circumstances of the case are  complex and there are multiple  conflicting renditions of "fact". I  suggest that people hold off until the man has his day before the military tribunal.

He has been charged with desertion and "misbehavior before the enemy."

If convicted at a general court-martial, Sgt. Bergdahl could get life in prison on the misbehavior charge and up to five years for desertion.

http://www.wsj.com/articles/army-sgt-bowe-bergdahl-arraigned-on-charges-including-desertion-1450803202

For misbehavior before the enemy:

https://www.law.cornell.edu/uscode/text/10/899

This offense requires that any member of the armed forces "misbehaves"  before or in the presence of the enemy. If his post wasn't being threatend or attacked by the Taliban at the time of his AWOL from the post (which I believe it was not), this charge might be dismissed or mitigated by the military court.

[thaibeachlovers]

Bergdahl may have been "fortunate" that he wasn't rescued at the time he absconded while on active service. In that case he wouldn't have had Obama on his side and would indeed have been imprisoned for a very long time.

[RuamRudy]

4 hours ago, lungnorm said:

Spoken by a true Leftard.

 

Did you intend to write 'by a true Leftard' or were you meaning 'like a true Leftard'?

 

I am not convinced that I actually know what a leftard is, but if expectation of guilt or otherwise being determined in a court of law is a characteristic of a 'leftard', I guess I could be one.

Edited December 4, 2016 by RuamRudy

[Gary A]

Obama already did a very stupid thing by freeing 5 terrorists for the release of Bergdahl. Bergdahl should be tried by a military court for his actions. Obama would be well advised to keep his nose out of it.

[smotherb]

13 hours ago, Ulysses G. said:

I really think this deserter has been through enough and should not be charged. However, Obama should keep his nose out of it. He is responsible for one of the stupidest trades in history to get Bergdahl back.

Bergdahl was an American serviceman and the Obama administration negotiated his release--sure there were stories about Bergdahl deserting, but Americans are innocent until proven guilty whether you like the trade or not. What if you or your son were the American prisoner? Would you support a trade, maybe even an unfavorable trade?

[Ulysses G.]

24 minutes ago, smotherb said:

Bergdahl was an American serviceman and the Obama administration negotiated his release--sure there were stories about Bergdahl deserting, but Americans are innocent until proven guilty whether you like the trade or not. 

 

As someone said earlier in thread, I believe the guys that served with him and whose lives were placed in danger searching for him after he deserted. I still rather he not be imprisoned, but I understand why some feel otherwise.

[smotherb]

Just now, Ulysses G. said:

 

As someone said earlier in thread, I believe the guys that served with him and whose lives were placed in danger searching for him after he deserted. I still rather he not be imprisoned, but I understand why some feel otherwise.

Not arguing his punishment; he has yet to be tried. I think the whole story has yet to be heard; and maybe he is guilty of desertion and misbehavior in the face of the enemy, but he is still innocent until proven guilty.

[Ulysses G.]

I have read extensively about him and what happened. There is little doubt that he deserted and other soldiers were killed looking for him, whether is tried and convicted, or not.

Edited December 4, 2016 by Ulysses G.

[radiochaser]

By my reading and understanding of the topic.  Bergdal, is, by definition, a deserter.  

I would think that, two reasons for a Courts Martial, would be to determine what manner of punishment he will receive and for how long he would be punished.  

885. ARTICLE 85. DESERTION

10. Punitive Articles

(a) Any member of the armed forces who–

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or

(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another on of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion.

[geriatrickid]

 

Your ignorance is on display much to the delight of your supporters.

The laws you dismiss and  do not wish to respect are the same laws that protect you. They are the same laws that govern your basic rights and freedoms. Obviously, you do not support the rule of law or accept the authority of a military tribunal. You do not agree with the U.S. Constitution. Ipso facto, that makes you an enemy of the  USA and it's people.

 

Do you know who stupid your statement is? Seriously, stupid as in dumber than horse dung to label someone who believes in a respect for civil society and the laws that are applied as a "leftard"?  I'll dumb it down for you so you can  comprehend; All military personnel are sworn to uphold the U.S. Constitution and the orders and regulations authorized by the  U.S. Constitution  as set out in the applicable regulations and the US. Uniform  Code of  Military Justice. it is not "leftard" to believe in due process.

 

Edited December 4, 2016 by Scott
Deleted post edited out

[geriatrickid]

1 hour ago, radiochaser said:

By my reading and understanding of the topic.  Bergdal, is, by definition, a deserter.  

I would think that, two reasons for a Courts Martial, would be to determine what manner of punishment he will receive and for how long he would be punished.  

885. ARTICLE 85. DESERTION

10. Punitive Articles

(a) Any member of the armed forces who–

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or

(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another on of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion.

 

When did you review the evidence that is associated with the case? How is it you know he facts when they have yet to be established? You are certain a desertion occurred even though the investigating officers, and the judge advocate's office did not believe there was evidence to support a charge of desertion. What do you know that the military investigators did not know? The only reason there are now charges is because the commanding officer insisted that there be charges. That was his perogative and is allowed under the applicable military law. The evidence  to convict on the charge hasn't even been presented, and yet you  find the  accused guilty.  Nice.

 

[radiochaser]

II. What is a Deserter?

The criteria by which a soldier is classified as a deserter have varied over time. Currently, any soldier who has taken an unauthorized leave from his/her training or duty station is considered AWOL. On the 31st day of AWOL, this status is officially changed to Dropped From Rolls (DFR), or desertion. 

[Ulysses G.]

3 hours ago, geriatrickid said:

 

When did you review the evidence that is associated with the case? How is it you know he facts when they have yet to be established? You are certain a desertion occurred even though the investigating officers, and the judge advocate's office did not believe there was evidence to support a charge of desertion. What do you know that the military investigators did not know?

 

 

This article claims that he has been charged with something worse than desertion.

 

https://www.bloomberg.com/view/articles/2015-12-15/why-bergdahl-faces-a-worse-charge-than-desertion

[Srikcir]

5 hours ago, Ulysses G. said:

 

This article claims that he has been charged with something worse than desertion.

 

https://www.bloomberg.com/view/articles/2015-12-15/why-bergdahl-faces-a-worse-charge-than-desertion

See my post #9 regarding "misbehaves before the enemy" wherein I commented:

This offense requires that any member of the armed forces "misbehaves"  before or in the presence of the enemy. If his post wasn't being threatend or attacked by the Taliban at the time of his AWOL from the post (which I believe it was not), this charge might be dismissed or mitigated by the military court.

I expect his defense counsel will actively oppose such as charge, perhaps plea bargain to desertion with less than 5 years prison.

[Morch]

On 12/4/2016 at 1:04 PM, geriatrickid said:

Hello, where is this dessertion label coming from? The man has not been convicted of the charge. He hasn't even gone to trial.  The circumstances of the case are  complex and there are multiple  conflicting renditions of "fact". I  suggest that people hold off until the man has his day before the military tribunal.

 

The label is deduced from the charges, as detailed in the OP (" he faces charges of desertion and misbehavior before the enemy."). While it is true that he wasn't convicted, I think many feel strongly about it as the pardon request seems like an effort to avoid the trial altogether, or to mitigate the outcome, even beforehand.

[thaibeachlovers]

15 hours ago, geriatrickid said:

 

When did you review the evidence that is associated with the case? How is it you know he facts when they have yet to be established? You are certain a desertion occurred even though the investigating officers, and the judge advocate's office did not believe there was evidence to support a charge of desertion. What do you know that the military investigators did not know? The only reason there are now charges is because the commanding officer insisted that there be charges. That was his perogative and is allowed under the applicable military law. The evidence  to convict on the charge hasn't even been presented, and yet you  find the  accused guilty.  Nice.

 

Your post would be applicable if the thread was about if he deserted or not. However the thread is about his seeking a pardon to avoid being tried, so discussion should be about whether the president should get involved in what is a military matter.

[Credo]

3 hours ago, thaibeachlovers said:

Your post would be applicable if the thread was about if he deserted or not. However the thread is about his seeking a pardon to avoid being tried, so discussion should be about whether the president should get involved in what is a military matter.

The president is the Commander-in-Chief.   His involvement in military matters is one of his main responsibilities.    

[Ulysses G.]

1 hour ago, Credo said:

The president is the Commander-in-Chief.   His involvement in military matters is one of his main responsibilities.    

 

That does not usually include the Court Martial of a low ranking deserter.

[Credo]

3 hours ago, Ulysses G. said:

 

That does not usually include the Court Martial of a low ranking deserter.

Once again, he is the C-in-C and he can get involved in any aspect of the military that he wishes to get involved in, especially if there is a request for a pardon.    

 

[Ulysses G.]

3 hours ago, Credo said:

Once again, he is the C-in-C and he can get involved in any aspect of the military that he wishes to get involved in, especially if there is a request for a pardon.    

 

 

His trial is not till 2017. He will have to ask President Trump.

 

http://abcnews.go.com/US/bowe-bergdahl-trial-postponed-february-2017/story?id=39170101

[Credo]

25 minutes ago, Ulysses G. said:

 

His trial is not till 2017. He will have to ask President Trump.

 

http://abcnews.go.com/US/bowe-bergdahl-trial-postponed-february-2017/story?id=39170101

Perhaps if you would take the time to read the OP, it would be helpful.   You don't even have to read all of it:

 

U.S. Army Sgt. Bowe Bergdahl, the former prisoner of war who's accused of endangering comrades by walking off his post in Afghanistan, is asking President Barack Obama to pardon him before leaving office.

 

White House and Justice Department officials said Saturday that Bergdahl had submitted copies of the clemency request seeking leniency. If granted by Obama, it would allow Bergdahl to avert a military trial scheduled for April where he faces charges of desertion and misbehavior before the enemy. The misbehavior charge carries a maximum penalty of life in prison.

 

If the pardon isn't granted, Bergdahl's defense team said it will expand its legal strategy to the new administration by filing a motion arguing President-elect Donald Trump violated his due process rights with scathing public comments about the case.

 

He is asking President Obama, the C-in-C for clemency.   

[Srikcir]

3 minutes ago, Credo said:

asking President Barack Obama to pardon him before leaving office.

True

3 minutes ago, Credo said:

He is asking President Obama, the C-in-C for clemency

Untrue.

Meanings are not synonomous.

A pardon is forgiveness while clemency is leniency.

 

Obama can suggest to the military court a plea bargain that typically precedes a trial for early resolution. Perhaps a deal to mitigate the charges solely to desertion with mitigating circumstances, ie., Bergdahl was not protesting the war, attempted to escape Talibans twice and received physical punishment, did not carry US issued gear and weapons off post, did not reveal confidential information (mostly because he didn't have access), etc. AWOL in a combat theater is going to be labled "desertion" so maybe 2-3 years prison and dishonorable discharge.

 

According to Maj. Gen. Kenneth Dahl, the Army general who led the investigation into Bergdahl's actions in Afghanistan, he "did not find any evidence to corroborate the reporting that Bergdahl was...sympathetic to the Taliban," but rather, Bergdahl wanted to call attention to what he considered poor leadership of his unit."

http://edition.cnn.com/2014/01/19/us/bowe-bergdahl-fast-facts/