Thursday, October 26, 2017

Bergdahl: Life is not long enough

On the Internet, apparently from a reporter at the sentencing hearing.

Day two of testimony in the case of accused deserter Army Sgt. Bowe Bergdahl saw more emotional recounts of horrifying injuries from service members who were on a team that was assigned to search for Bergdahl after he walked off his outpost in Afghanistan in 2009.

Bergdahl, now 31, earlier this month pleaded guilty to desertion and misbehavior before the enemy after deserting his post. Bergdahl could face a life sentence.

Jonathan Morita, who left the Army as a Sergeant, gave graphic testimony about how his hand was shattered by a rocket-propelled grenade during the search mission, which left it “dangling off” his arm at the time, Fox News reported. After several surgeries, Morita is left without full use of his dominant hand.

Master Sgt. Mark Allen suffered a head wound during the ambush; he now is unable to speak and uses a wheelchair, Fox reported. National Guard Staff Sgt. Jason Walters submitted emotional testimony on Thursday about the moment Allen was hit, and then trying to dress Allen’s head wound.
Allen’s wife is expected to testify Monday, Fox reported.

“[Defense lawyer Army Maj. Oren Gleich] told the judge he believes it’s appropriate for her to testify to the wound’s effects on Allen himself, but the defense could object if prosecutors steer her toward testimony that goes too far into the impact on his family. The judge, Col. Jeffery Nance, said he would have to wait and see what the objections were before weighing in on the defense’s stance,” Fox reported.

Nance had delayed the hearing from Monday to Wednesday when the defense filed a last-minute motion over comments President Donald Trump had made in the past as a candidate, and last week as President. The defense claims Bergdahl would not receive a fair sentencing. The judge has said he is still considering the defense’s motion to dismiss the charges.

Nance, who holds Bergdahl’s fate in his hands, heard on Wednesday from former Navy SEAL James Hatch and Army Capt. John Billings, Bergdahl’s platoon leader when he walked off post in 2009. He also heard from three other service members on day one of the sentencing hearings – Sgt. Evan Buetow, from Bergdahl’s unit; Col. Clinton Baker, Bergdahl’s battalion commander; and retired aviation Col. John White.

Billings testified that at first, he thought the search was a “joke;” when asked why they continued to persist in the search – which was took its toll on the troops and ultimately cost the military six service members – he said they live by the mantra “leave no man behind,” NBC reported.

Bergdahl, now 31, earlier this month pleaded guilty to desertion and misbehavior before the enemy after deserting his post in Afghanistan in 2009 and being held captive by the Taliban for five years.
Hatch helped lead the search in the days following Bergdahl’s desertion, and he testified Wednesday that he knew Americans would be killed or hurt in the search for the Army Sergeant when he found out the mission.

“‘Everyone on that mission was aware that he walked off’ his post,” Hatch said during the sentencing hearing Wednesday, USA TODAY reported.

Nance, the military court judge at Fort Bragg, North Carolina, had said Monday that he wanted more time to review the defense’s motion, and had recessed the court until Wednesday.

Nance also gave Bergdahl an opportunity to withdraw his guilty plea, but Bergdahl refused. A guilty plea meant Bergdahl would not face a trial. He had already decided to let a judge – and not a military jury – render a verdict.

When asked on Wednesday why he went looking for Bergdahl, Hatch said: “He’s an American. […] It’s really something I never questioned,” USA TODAY reported.

Hatch was shot in the leg during the mission to find Bergdahl after he left his outpost in Afghanistan in 2009. Six people died searching for Bergdahl.

After Bergdahl left his post in 2009, he was held as a Taliban prisoner until 2014, when the Obama Administration was able to get him back to the United States through a prisoner swap. Bergdahl was released in exchange for five Guantanamo Bay detainees.

During the 2016 presidential campaign, Donald Trump said Bergdahl was “a dirty rotten traitor” for leaving his post and endangering the lives of others, and that he should “face the death penalty.” Five soldiers died while looking for Bergdahl.

A military judge in February ruled against dropping charges against Bergdahl after Bergdahl’s lawyers argued that comments made by Trump prior to the 2016 election violated their client’s due process rights.

USA TODAY reported details from Hatch and Billings:

“Everyone in Afghanistan was looking for Bergdahl,” said Capt. John Billings, who was Bergdahl’s platoon leader when he walked off the post.

Billings said his platoon spent weeks searching for Bergdahl in austere conditions with little food or water and his soldiers would go without showers for up to two weeks at a time.

Hatch offered a harrowing account of an attempted rescue mission. He led a team of special operations forces based in Jalalabad, Afghanistan. Their mission was to capture or kill “high value targets” or rescue hostages.

When told they were to rescue a missing American, that became the team’s top priority.
The team came under immediate fire as they were descending toward a place where they were told Bergdahl might be held. It was not clear whether he was there, but the area was filled with militants and civilians.

Helicopters carrying the SEALs came under fire as they began descending toward the spot. Hatch said he saw tracer fire streaming toward the helicopters.

Civilians, including children, were also running around the area. Hatch described carrying two young children to safety.

He became emotional when he talked about a service dog, Remko, who was shot in the head and killed by a militant.

Hatch was shot in the leg above the knee. “I was laying there trying not to scream, but screaming,” Hatch said.

Hatch, who had a noticeable limp as he approached the witness stand, said he underwent 18 procedures over several years. He was accompanied by a service dog.

Billings, the platoon leader, said he initially thought he was the victim of a bad joke when his soldiers first told him Bergdahl was missing. His platoon sergeant told him it was no joke, and he sent a message notifying his higher headquarters of a missing soldier.

The next 10 days were a “big blur,” Billings said.

Friday, October 20, 2017

I may regret this......

I've often been asked why this blog does not accept comments, especially because some of it is often controversial. There have been several reasons, all of which were reasonable in their time. Though now some still are, at the urging of friends I'm opening the comment door just a crack--meaning that recipients of this blog can comment, but it is unlikely that I will respond. See the blue link at the bottom of the page.

Saturday, October 7, 2017

Nearing the end of the Bowe Bergdahl saga

 In a short essay on September 8, 2015 in National Review, headlined "The Pentagon Throws the Book at Bowe Bergdahl," David French wrote that "[i]t looks like the Obama administration may have traded five high-ranking Taliban prisoners for someone who was worse than a deserter." Mr. French was referring to Bergdahl having been charged with not only UCMJ Article 85 (desertion), but also Article 99 (misbehavior before the enemy).

 The next day, I wrote a blog asking why the Army brought both charges. In answering the question, I said that “rather than rely on what TV’s talking heads and other media pundits say about those two articles, let’s see what they actually say.”

Article 85 of the Uniform Code of Military Justice—"Desertion with Intent to Shirk Important or Hazardous Duty”— carries a maximum punishment of a dishonorable discharge, reduction to the rank of E-1, total forfeiture of all pay and allowances, and maximum confinement of five years

Article 99 of the Uniform Code of Military Justice— "Misbehavior Before The Enemy by Endangering the Safety of a Command, Unit or Place"— carries a maximum penalty of dishonorable discharge, reduction to the rank of E-1, total forfeiture of all pay and allowances, and possible confinement for life.

Now look at the essential element of each article that prosecutors have to prove………

For Article 85: (1) That Bergdahl . . .  quit his (or her) unit or place of duty, (2) . . . with the intent to avoid or shirk certain service, (3) the duty to be performed was hazardous or important, (4) that Bergdahl knew he was required for the duty or service, and (5) he remained absent until a certain date. Note the higher prosecution burden of proof, and modest penalty.

For Article 99:

“Any member of the armed forces who before or in the presence of the enemy—

(1) runs away;

(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or       military property which it is his duty to defend;

(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;

(4) casts away his arms or ammunition;

(5) is guilty of cowardly conduct;

(6) quits his place of duty to plunder or pillage;

(7) causes false alarms in any command, unit,
                or place under control of the armed forces; 

(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or

(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle; shall be punished by death or such other punishment as a court-martial may direct.”

Note the more items on the prosecutor’s menu, the lower burden of proof, and only one act that requires something akin to intent.

Why did the Army charge both Articles?

Charging Bergdahl with Article 99 and its much higher penalty gave the prosecution more leverage in obtaining the plea it seems to have gotten.

As to intent, usually provable only circumstantially, Article 85 expressly requires it. Article 99 does not. (See Article 85, subsection 8, requiring “willfulness”.) Article 99 is a much easier conviction than Article 85.

In my essay two years ago I opined that the Army was “forcing” Bergdahl to cop a plea, which would bury the Bergdahl-for-Taliban terrorists affair without the fanfare, embarrassment, and old wound-opening of a court martial. Given the facts of the case, especially the available testimony of Bergdahl’s fellow soldiers, I wrote at the time that there was no way Bergdahl would walk. He and his military-law lawyers have always know that. Now, it looks like he won’t.

I wrote at that time also that the only question was how severe Bergdahl’s sentence would  be. That remains the final question to be answered about Private Bowe Berghdal’s disgraceful conduct in Afghanistan.

We’ll see.