Bowe Bergdahl’s court-martial is overturned

A federal judge on Tuesday vacated the conviction of former Army soldier Bowe Bergdahl, who pleaded guilty to desertion after leaving his post in Afghanistan and spending five years in Taliban custody. 

U.S. District Judge Reggie Walton found that Bergdahl was denied a fair trial because the military judge overseeing his case, then-Col. Jeffrey Nance, did not disclose he was applying for a civilian position at the Justice Department while presiding over the court-martial. 

“Furthermore, the Court will vacate all orders and rulings issued by the military judge who presided over the plaintiff’s court-martial as of October 16, 2017, and thereafter — which was the date when that military judge submitted his employment application for an immigration judge position,” Walton wrote, adding that, “Consequently, the judgment of the military judge regarding the plaintiff’s [Bergdahl’s] court-martial is rendered void.”

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October 16, 2017, was the date Bergdahl entered a guilty plea for desertion. It was also the day Nance submitted an application to the Justice Department for a position as an immigration judge. It was also one day before Nance — when questioned about the potential of impartiality in the case — referred to himself as a “terminal colonel” who was “not going anywhere but the retirement pastures,” according to court documents.

“Military judges, like all other judges, have to disclose if there is a basis for their disqualification,” Eugene Fidell, one of the lawyers representing Bergdahl, said.

In 2009 Bergdahl deserted his post in Afghanistan and was soon captured, spending the next five years imprisoned by the Taliban. His return in 2014 — Bergdahl was exchanged for five detainees being held in Guantanamo Bay, Cuba — quickly became controversial. He was a soldier who had deserted his post, and whose attempted rescue led to multiple casualties. That same soldier was now back in the U.S.

Senator John McCain, himself a former prisoner of war, and Donald Trump, who would go from presidential candidate to a sitting President of the United States and commander in chief over the course of the court martial, notably made public statements calling for harsh punishment for Bergdahl, including going on record to say he should face the death penalty.

The possibility of unlawful command influence formed the basis for Bergdahl’s initial appeal.

Bergdahl’s case first went through the Court of Appeals for the Armed Forces (CAAF), which denied Bergdahl’s appeals based on those unlawful command influence claims in a 3-2 decision in 2020. The case was then appealed to a federal court.

Ultimately, Walton’s ruling wasn’t based on Tweets or interviews from Senators, but on the judge’s failure to disclose a very obvious conflict of interest in the court-martial. 

“It’s rare for a civilian court to overturn a military conviction, because there are appellate courts,” said Rachel Van Landigham, a former Air Force judge advocate and law professor at Southwestern Law School. “But in this case, you have a judge intentionally lying.”

While overturning a military conviction is rare, there is precedent. 

In 2019, a federal court overturned the conviction of Abd al-Rahim al-Nashiri, who participated in the 2000 USS Cole attack. As in Bergdahl’s case, the military judge, Air Force Col. Vance Spath, presiding over al-Nashiri’s trial, was applying for a job with the Justice Department during the court proceedings, leading to eventual vacating of the initial findings. 

All of which now leaves Bergdahl, although his name is still synonymous with desertion in Afghanistan, in good standing. The Army can go through the court martial process once again, or just let Bergdahl be. 

“The ball is in the Army’s court,” said Fidell.

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