Judge vacates desertion conviction for former US soldier captured in Afghanistan

25 July 2023

FALLS CHURCH, Va. (AP) — A federal judge on Tuesday vacated the military conviction of Bowe Bergdahl, a former U.S. Army soldier who pleaded guilty to desertion after he left his post and was captured in Afghanistan and tortured by the Taliban.

The ruling from U.S. District Judge Reggie Walton in Washington says that military judge Jeffrey Nance, who presided over the court-martial, failed to disclose that he had applied to the executive branch for a job as an immigration judge, creating a potential conflict of interest.

Walton noted that former President Donald Trump had strongly criticized Bergdahl during the 2016 presidential campaign. Bergdahl’s lawyers argued that Trump’s comments placed undue command influence on Nance.

Walton rejected the specific argument surrounding undue command influence, but he said a reasonable person could question the judge’s impartiality under the circumstances.

Bergdahl was charged with desertion and misbehavior before the enemy after the then-23-year-old from Hailey, Idaho, left his post in Afghanistan in 2009. He said he was trying to get outside his post so he could report what he saw as poor leadership within his unit, but he was abducted by the Taliban and held captive for nearly five years.

During that time, Bergdahl was repeatedly tortured and beaten with copper wires, rubber hoses and rifle butts. After several escape attempts, he was imprisoned in a small cage for four years, according to court documents.

Several U.S. servicemembers were wounded searching for Bergdahl. In 2014, he was returned to the U.S. in a prisoner swap for five Taliban leaders who were being held at Guantanamo Bay.

The swap faced criticism from Trump, then-Sen. John McCain and others. Both Trump and McCain called for Bergdahl to face severe punishment.

In 2017, he pleaded guilty to both charges. Prosecutors at his court-martial sought 14 years in prison, but he was given no time after he submitted evidence of the torture he suffered while in Taliban custody. He was dishonorably discharged and ordered to forfeit $10,000 in pay.

His conviction and sentence had been narrowly upheld by military appeals courts before his lawyers took the case to U.S. District Court, resulting in Tuesday’s ruling.

The Justice Department declined comment on the ruling Tuesday.

Eugene Fidell, one of Bergdahl’s lawyers, said he was gratified by the ruling and said Walton’s 63-page opinion shows how meticulous he was in rendering the ruling.

Calls and emails to the immigration court in Charlotte, North Carolina, where Nance now serves as an immigration judge, were not returned Tuesday evening.

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