Sgt. Bowe Bergdahl, who walked off his Army base in Afghanistan in 2009 and was held captive by the Taliban for five years, was ordered to be dishonorably discharged from the Army by a military judge Friday, but received no prison time for desertion or endangering troops.
At a sentencing that took only minutes, the military judge, Col. Jeffery R. Nance of the Army, also reduced Bergdahl’s rank to private and required him to forfeit $1,000 a month of his pay for 10 months. Prosecutors had sought 14 years in a military prison.
President Donald Trump, who has labeled Bergdahl a “dirty rotten traitor,” quickly criticized Friday’s sentence, calling it “a complete and total disgrace to our Country and to our Military.”
Nance did not explain his reasoning for the sentence, which will be reviewed by Gen. Robert B. Abrams, who convened the court-martial, and has the power to lessen the punishment. If the final sentence still includes a punitive discharge, it will then automatically be reviewed by the United States Army Court of Criminal Appeals.
Politics have dogged the case from the start. The Obama administration embraced Bergdahl — national security adviser Susan Rice said that he had served with “honor and distinction” — a portrayal that angered many Republicans. Then, last year, Trump made Bergdahl a staple of his campaign speeches, denouncing him and calling for him to be executed.
Outside the military courthouse here, Bergdahl’s chief defense lawyer Eugene R. Fidell called the sentence a “tremendous relief,” and said his client was still absorbing it after an “anxiety-inducing” day waiting for the decision.
Fidell then took sharp aim at Trump, whose harsh comments about Bergdahl may have contributed to the decision not to sentence him to prison: Nance had ruled earlier this week that he would consider the president’s statements as mitigating evidence.
“President Trump’s unprincipled effort to stoke a lynch-mob atmosphere while seeking our nation’s highest office has cast a dark cloud over the case,” said Fidell, who teaches military justice at Yale Law School. “Every American should be offended by his assault on the fair administration of justice and disdain for basic constitutional rights.”
Even though the defense had told the judge that a dishonorable discharge would be appropriate, Fidell said he hoped that would be overturned on appeal. He noted that such a discharge would deprive his client of Veterans Affairs health care services and other “benefits he badly needs.”
Bergdahl was 23 and a private first class when he left his base in eastern Afghanistan in June 2009. Army investigators would later characterize his departure as a delusional effort to hike to a larger base and cause enough of a stir that he would get an audience with a senior officer to report what he felt were problems in his unit.
But the soldier, who is now 31, was captured by the Taliban within hours, and would spend five years as a prisoner, his treatment worsening after every attempt he made to escape. He was beaten with copper cables, and held in isolation in a metal cage less than 7-feet square. He suffered dysentery for most of his captivity, and cleaned feces off his hands with his own urine so that he could eat enough bread to survive.
The military searched for him, and several troops were wounded during search missions. One of them, Sgt. 1st Class Mark Allen, was shot through the head and lost the ability to walk, talk or take care of himself, and now has minimal consciousness. His wife, Shannon, testified that he is not even able to hold hands with her any more. On a separate rescue mission, Senior Chief Petty Officer Jimmy Hatch, a Navy SEAL, suffered a leg wound that would require 18 surgical procedures and end his long career in special operations.
Bergdahl — he was promoted while in captivity — was freed in 2014 when the Obama administration exchanged five Taliban detainees at Guantánamo Bay for him, setting off a political furor that still reverberates. Congressional Republicans were angered by the release of Taliban prisoners and by the way the Obama administration portrayed the sergeant.
Army investigators quickly dismissed claims that troops had died searching for Bergdahl, or that he had intended to defect to the Taliban. They suggested that he could be prosecuted for desertion and for some lesser crimes. But in March 2015, the Army raised the stakes, accusing him not only of desertion but also of misbehavior before the enemy, an ancient but rarely charged crime punishable by up to life in prison. In this case, the misbehavior was endangering the troops who were sent to search for him.
Even so, the sergeant’s defense seemed to have some momentum. The Army’s chief investigator on the case testified at Bergdahl’s preliminary hearing that he did not believe any jail time was warranted, and the preliminary hearing officer suggested that the whole episode might have been avoided “had concerns about Sergeant Bergdahl’s mental health been properly followed up.”
After the hearing officer recommended leniency, Sen. John McCain, R-Ariz., whose committee oversees senior military appointments, warned that he would hold a hearing if the sergeant was not punished. At Fort Bragg, Abrams later ordered that Bergdahl face a general court-martial on both charges.
Once Trump was inaugurated, Bergdahl’s defense team demanded that the case be dismissed. There was no way the sergeant could receive a fair trial, his lawyers said, since everyone in the military justice system now reported to Trump as commander-in-chief.
Nance labeled Trump’s comments about Berdahl “disturbing” but declined to throw out the case. Then, last month, Trump seemed to endorse his earlier sentiments about Bergdahl, saying, “I think people have heard my comments in the past.”
After another protest by the defense, Nance ruled that he would consider the president’s comments as evidence in mitigation as he deliberated on a sentence.
People could conclude, the judge explained, that the president had “wanted to make sure that everyone remembered what he really thinks should happen” to Bergdahl.
During the sentencing hearing, Bergdahl took the stand and apologized for his actions, saying that he never intended for anyone to get hurt, and that he grieved “for those who have suffered and their families.”
He added, “I’m admitting I made a horrible mistake.”
The lead Army prosecutor, Maj. Justin Oshana, drew a comparison between Bergdahl and those who were hurt through his actions.
“It wasn’t a mistake,” Oshana said of the sergeant’s decision to walk off his base. “It was a crime.”
Responding to defense testimony about how captivity had left Bergdahl with pain that he still struggles with, Oshana noted that at least the sergeant is able to talk about it. Allen is constantly in pain, too, he said, but no longer possesses the ability to describe it.
“Sgt. Bergdahl does not have a monopoly on suffering as a result of his choices,” Oshana added, asking the judge to sentence Bergdahl to 14 years in a military prison.
The defense argued that Bergdahl had already suffered a severe penalty for his crimes by being tortured during five years in captivity.
“It is undisputed that Sgt. Bergdahl paid a bitter price for the decision he made,” one of his lawyers, Capt. Nina Banks, told Nance. She said that a dishonorable discharge was appropriate, but asked that he be spared prison.
The defense argued that Bergdahl’s decision to walk away was influenced by a then-undiagnosed severe personality disorder.
Banks also told the judge that the harsh comments Trump made on the campaign trail meant that the sergeant’s persecution did not stop when he was freed from captivity.
“Sgt. Bergdahl has been punished enough,” Banks said.