The former military lawyer who led the prosecution against Bowe Bergdahl criticized President Trump’s public comments about the convicted U.S. Army deserter, saying the politicization of the case nearly reversed the conviction.
Justin Oshana, an Army major who headed up the military’s litigation against Bergdahl and went on to become an assistant U.S. attorney, penned an op-ed for the Washington Post this week.
“I do not have a lot of sympathy for Bergdahl,” he said, adding, “his actions caused immeasurable suffering to better men and women than he could ever hope to be” but that “Bergdahl, like every American, deserved to have his actions judged, not on the campaign trail, not on cable news, but in a court of law.” Bergdahl “did not deserve to be condemned by the president before he got his day in court,” Oshana said.
Trump made numerous comments calling Bergdahl a “traitor” when running for president, pointed to those comments once in office, and criticized the military judge handling the case.
Bergdahl, a former Army sergeant, walked away from his battalion outpost in eastern Afghanistan in June 2009 and was soon captured by the Taliban and held captive for five years. Guantanamo Bay detainees dubbed “the Taliban Five” (who had been members of the Taliban government prior to its overthrow by U.S. forces in the wake of the terrorist attacks of Sept. 11, 2001) were released by the Obama administration in 2014 as part of the prisoner exchange for Bergdahl. The Obama administration’s decision was opposed by many at the Pentagon and was strongly criticized by Republicans, and the Government Accountability Office concluded in 2014 that the Obama administration broke the law by not notifying Congress at least 30 days in advance.
President Barack Obama held a controversial Rose Garden speech with Bergdahl’s parents in May 2014 to celebrate Bergdahl’s return and to announce the release of the Guantanamo prisoners. His national security adviser, Susan Rice, claimed in June 2014 that Bergdahl “served the United States with honor and distinction” as she defended the prisoner swap.
Republican Sen. John McCain, who died in 2018, said in 2015 that “if it comes out that Bergdahl has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee.”
On the campaign trail, Trump called Bergdahl “a dirty, rotten, no-good traitor” and a “son of a bitch” who he’d want to be executed by firing squad.
Bergdahl was charged in 2015 under the Uniform Code of Military Justice with one count of “desertion with intent to shirk important or hazardous duty” and another count of “misbehavior before the enemy by endangering the safety of a command, unit, or place.” Bergdahl pleaded guilty to the charges, and the military judge sentenced Bergdahl to a dishonorable discharge, reduction in rank, and forfeiture of $1,000 per month for 10 months.
The U.S. Court of Appeals for the Armed Services narrowly upheld Bergdahl’s conviction by a narrow 3-2 vote last Thursday.
Judge Keith Ohlson’s majority opinion pointed to comments made by Trump and McCain (calling them variously “troubling,” “disturbing,” “disappointing,” “inaccurate,” “inappropriate,” and “ill-advised”) but found that “the totality of these circumstances makes it clear beyond a reasonable doubt that the comments … did not place an intolerable strain upon the public’s perception of the military justice system in this particular case.” Ohlson said Bergdahl had faced “very serious offenses for which either a life sentence or the death penalty were authorized punishments” and that “these offenses were anathema to the military and its mission.” The judge also stressed that “as a direct and foreseeable consequence” of Bergdahl’s misconduct, “other members of the armed forces were injured — some severely — while seeking to find and rescue” him. The judge said, “It is wholly unrealistic to believe there was any scenario where” Bergdahl “would not have been held accountable at a general court-martial for his offenses (to which he voluntarily pleaded guilty).”
Trump said in the Rose Garden in October 2017, “I can’t comment on” Bergdahl, but added, “I think people have heard my comments in the past.” The appeals judges said that “the last sentence of this statement was a ratification of, and served to incorporate by reference, the comments Mr. Trump had previously made on the campaign trail.” Trump also tweeted in November 2017 that the trial judge was “a complete and total disgrace to our Country and to our Military.” The appeals panel said Trump’s statement “appeared both to censure the court-martial with respect to the sentence, and had the potential to appear to influence other subsequent functions of the court-martial.”
Oshana said, “While the presidency might be the most powerful position on Earth, the responsibility to fair and impartial justice does not wane to score political points.”
Judge Scott Stucky, one of the dissenters, said the comments by McCain and Trump “placed an intolerable strain on the military justice system, and the only appropriate remedy is dismissal of the charges.” Judge John Sparks, the other dissenter, said that “this case is a cautionary example of the vulnerabilities of the military justice system.”
Troops on the ground claimed that six service members were killed during the search for Bergdahl, and other soldiers said the military delayed closing Combat Outpost Keating while assets were shifted to searching for Bergdahl — eight soldiers were killed there in October 2009 when hundreds of Taliban fighters assaulted the outpost. An Army investigation did not find that any U.S. soldiers were killed during the search for Bergdahl, though it found that numerous soldiers suffered serious injuries during the search, including National Guard Master Sgt. Mark Allen, whose unit was ambushed when gathering information about Bergdahl in Afghan villages in the summer of 2009. Allen was shot in the head, permanently severely disabled, and died last October.
