Posted on Mar 19, 2016
Documents portray Bowe Bergdahl on the edge, troubled well before he left his Afghanistan post
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For all you here on RP who have already concluded that Bergdahl is (take your pick), A Traitor, guilty of Desertion, and therefore should be shot right now, skipping the necessity and inconvenience of a Court-Martial trial or a Defense.
"The documents, which have not previously been disclosed, indicate that the Army’s 22-member investigative team, which spent two months interviewing scores of witnesses and compiled the report that formed the initial basis for prosecuting Sergeant Bergdahl, never proposed that he could be tried on the most serious charge he now faces: endangering the troops sent to search for him.
This dissonance has led members of the sergeant’s defense team to question whether the tougher line reflected improper influence from higher levels of the military or political considerations as top Republicans in Congress and on the presidential campaign trail declared the sergeant guilty and demanded he face stiff punishment.
The documents include a 371-page transcript of Sergeant Bergdahl’s interview in August 2014 with Maj. Gen. Kenneth R. Dahl, who headed the Army’s investigation. The transcript provides the most complete account yet of his disappearance from a remote base in eastern Afghanistan in June 2009, which prompted a huge manhunt.
The transcript was provided to The New York Times and “PBS NewsHour” by Sergeant Bergdahl’s chief defense lawyer, Eugene R. Fidell, who teaches military justice at Yale Law School. It is one of two documents that a number of news organizations, including The Times, had unsuccessfully sought to obtain through legal action." http://www.nytimes.com/2016/03/17/us/new-documents-reveal-army-once-pursued-softer-approach-on-bergdahl.html?_r=0
"Under Anglo-American Common Law, the accused is always presumed innocent in all types of proceedings; proof is always the burden of the accuser."
"The documents, which have not previously been disclosed, indicate that the Army’s 22-member investigative team, which spent two months interviewing scores of witnesses and compiled the report that formed the initial basis for prosecuting Sergeant Bergdahl, never proposed that he could be tried on the most serious charge he now faces: endangering the troops sent to search for him.
This dissonance has led members of the sergeant’s defense team to question whether the tougher line reflected improper influence from higher levels of the military or political considerations as top Republicans in Congress and on the presidential campaign trail declared the sergeant guilty and demanded he face stiff punishment.
The documents include a 371-page transcript of Sergeant Bergdahl’s interview in August 2014 with Maj. Gen. Kenneth R. Dahl, who headed the Army’s investigation. The transcript provides the most complete account yet of his disappearance from a remote base in eastern Afghanistan in June 2009, which prompted a huge manhunt.
The transcript was provided to The New York Times and “PBS NewsHour” by Sergeant Bergdahl’s chief defense lawyer, Eugene R. Fidell, who teaches military justice at Yale Law School. It is one of two documents that a number of news organizations, including The Times, had unsuccessfully sought to obtain through legal action." http://www.nytimes.com/2016/03/17/us/new-documents-reveal-army-once-pursued-softer-approach-on-bergdahl.html?_r=0
"Under Anglo-American Common Law, the accused is always presumed innocent in all types of proceedings; proof is always the burden of the accuser."
Documents portray Bowe Bergdahl on the edge, troubled well before he left his Afghanistan post
Posted from latimes.com
Bergdahl
Court Martial
Afghanistan
Desertion
Edited >1 y ago
Posted >1 y ago
Responses: 5
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First, I don't have to give Sgt. Bergdahl the presumption of innocence. I was not part of the investigation. I am not part of the jury pool, nor am I likely to be. And I am not a member of the press. Neither are a vast super majority of the members of Rally Point.
So what if he was on the edge and having troubles well before leaving his post. I'm sure there were literally hundreds of men and women in the same mindset. And none of them left to go walkabout in Afghanistan.
Let the courts-martial chips fall where they will.
So what if he was on the edge and having troubles well before leaving his post. I'm sure there were literally hundreds of men and women in the same mindset. And none of them left to go walkabout in Afghanistan.
Let the courts-martial chips fall where they will.
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Capt Lance Gallardo
LTC Trent Klug Sir, Bergdahl with his background should never have been accessed into the US Army. Unfortunately 2007-2008 were the toughest years for recruiting (especially 2007) for the US Army. I was at an all day long legal seminar yesterday, where USAR Lt.Col. Margaret Stock (ret) (coincidentally Sir, a Career reservist MP Officer in Alaska, not a JAG), spoke about the recruiting situation for the Army in 2007 and what was projected for 2008. 2008 was when the Army/DOD started with Lt.Col. Stock's assistance, the MAVNI program to recruit legal aliens/Immigrants who had certain language skills or medical field backgrounds, like Doctors, Dentists, Nurses etc(not undocumented illegals). Lt.Col. Stock was a Harvard Law School and former West Point Legal Professor, prior to that, and the Head of USAREC (if my notes are correct), had her put on AD Orders to get the program off the ground. That is how tough it was to get Qualified Recruits. The economy was booming (before the housing market crash), the War in Iraq was unpopular and casualties were high. In a more "normal" recruiting environment, I don't think Bergdahl would have been given a second look after his wash out at Coast Guard Basic training. http://www.nytimes.com/2014/06/12/us/bowe-bergdahl-discharged-from-coast-guard-before-joining-army.html?_r=0
Before Army, P.O.W. Failed at Coast Guard Training
Sgt. Bowe Bergdahl spent just short of a month in basic training with the United States Coast Guard in early 2006 before he was given an administrative discharge, military officials said.
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LTC Trent Klug
Should Bergdahl have been allowed to enlist? In hind sight, no, and we all wish we had hindsight.
However, he is the one who fought to get in to prove himself after the Coast Guard. He's ultimately responsible for his actions. He'll have to live with the deaths of his fellow soldiers who died looking for him, as well what happened to him while the Haqqani had him.
However, he is the one who fought to get in to prove himself after the Coast Guard. He's ultimately responsible for his actions. He'll have to live with the deaths of his fellow soldiers who died looking for him, as well what happened to him while the Haqqani had him.
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Capt Lance Gallardo
LTC Trent Klug - He will get justice at the hands of his fellow Army Members of his Court Martial for sure.
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He is admitting to guilt and premeditation. The rest are factors of mitigation and extenuating circumstance. They don't make him any less guilty it is just a play to say punish me less I've been punished enough. People keep arguing that he is innocent until proven guilty, but his own statements say he is guilty.
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Capt Lance Gallardo
CPT Mark Gonzalez Captain I have never seen a written published statement attributed to Bergdahl that made it crystal clear, Beyond a Reasonable Doubt, that Bergdahl had the necessary Mens Rea of Intent to Remain Away Permanently from his Unit, the US Army or the Military, that is necessary to convict for desertion. That is why the Investigating Major General Kenneth R. Dahl who reviewed the Army Psychiatrist's reports on Bergdahl's mental evaluations, and also interviewed Bergdahl personally and reviewed all of the written investigation, did not recommend jail time for Bergdahl, but rather recommended charges of: "According to the transcript of Dahl's interview, he gave Bergdahl a form listing the three offenses he was suspected of: being absent without leave, desertion and fraudulent enlistment. Dahl did not suggest any additional charges, according to the transcript."
He had some half-ass plan to report the problems his unit was having to higher authority, specifically the local Area Commanding General, with his departure from his unit. Leaving his unit for some kind of Hair-Brained Plan to report to the local CG by walking 20 miles away through a Taliban infested area is not desertion without the government proving beyond a reasonable doubt, that he had formed the necessary element of desertion that he would stay away from the Army or US Military "permanently." That is why desertion is so very difficult to plead and prove in Court Martial trials:
Mens Rea for Desertion
The offenses of desertion and absence without leave are similar in most respects, except for the intent element involved in desertion. See United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 1991). The remaining elements of desertion are the same as those for AWOL.
Desertion is a specific intent crime. United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956).
Evidence of intent may be based upon all the facts and circumstances of the case. Length of absence, actions and statements of the accused, and the method of termination of the absence (apprehension or voluntary surrender) are some factors to be considered. MCM, pt. IV, 9c(1)(c)(iii). Many of the circumstantial factors listed in the MCM can cut both ways, and may be argued by either side; therefore, in order to sustain a desertion conviction, the Government ought to provide additional context favoring conviction rather than simply raising the circumstances at trial. Ultimately, a conviction for desertion is legally sufficient where, given the circumstances of the particular case, a reasonable factfinder could draw an inference of intent beyond a reasonable doubt. United States v. Oliver, 70 M.J. 64 (C.A.A.F. 2011).
The determination of whether an accused intended to avoid hazardous duty or shirk important service is subjective, and whether the service is “important” is an objective question dependent upon the totality of circumstances. United States v. Gonzalez, 42 M.J. 469 (1995).
The length of the absence alone is insufficient to establish an intent to desert; however, in combination with other circumstantial evidence, it may be sufficient. United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
The totality of circumstances surrounding the offense can negate specific intent to absent oneself permanently. United States v. Logan, 18 M.J. 606 (A.F.C.M.R. 1984).
Having an understandable or laudable motive to desert is not a defense if the evidence sufficiently establishes the elements. United States v. Gonzalez, 39 M.J. 742 (N.M.C.M.R. 1994), aff’d 42 M.J. 469 (1995).
Evidence of an accused’s motive to quit her unit as gesture of protest because of moral or ethical reservations that the unit might commit war crimes is irrelevant to a charge of desertion with intent to avoid hazardous duty or shirk important service. United States v. Huet-Vaughn 43 M.J. 105 (C.A.A.F. 1995).
Evidence of a 26-month absence while accused was on orders for a war zone and where he was apprehended a long distance from his unit was sufficient to establish intent to desert. United States v. Mackey, 46 C.M.R. 754 (N.C.M.R. 1972).
Evidence of a two-year absence in vicinity of assigned unit, termination by apprehension, and a previous absence, despite retention of an identification card, was sufficient to show an intent to desert. United States v. Balagtas, 48 C.M.R. 339 (N.C.M.R. 1972).
The intent to remain away permanently need not coincide with the accused’s departure. A person must have had, either at the inception of the absence or at some time during the absence, the intent to remain away permanently. MCM, pt. IV, ¶ 9.c.(1)(c)(i).
In a case where desertion with intent to shirk important service was charged, infantry service in Vietnam was held to be “important service.” United States v. Moss, 44 C.M.R. 298 (A.C.M.R. 1971). See also United States v. Hocker, 32 M.J. 594 (A.C.M.R. 1991) (accused’s plea provident to desertion with intent to avoid hazardous duty where service was duty in Persian Gulf).
He had some half-ass plan to report the problems his unit was having to higher authority, specifically the local Area Commanding General, with his departure from his unit. Leaving his unit for some kind of Hair-Brained Plan to report to the local CG by walking 20 miles away through a Taliban infested area is not desertion without the government proving beyond a reasonable doubt, that he had formed the necessary element of desertion that he would stay away from the Army or US Military "permanently." That is why desertion is so very difficult to plead and prove in Court Martial trials:
Mens Rea for Desertion
The offenses of desertion and absence without leave are similar in most respects, except for the intent element involved in desertion. See United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 1991). The remaining elements of desertion are the same as those for AWOL.
Desertion is a specific intent crime. United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956).
Evidence of intent may be based upon all the facts and circumstances of the case. Length of absence, actions and statements of the accused, and the method of termination of the absence (apprehension or voluntary surrender) are some factors to be considered. MCM, pt. IV, 9c(1)(c)(iii). Many of the circumstantial factors listed in the MCM can cut both ways, and may be argued by either side; therefore, in order to sustain a desertion conviction, the Government ought to provide additional context favoring conviction rather than simply raising the circumstances at trial. Ultimately, a conviction for desertion is legally sufficient where, given the circumstances of the particular case, a reasonable factfinder could draw an inference of intent beyond a reasonable doubt. United States v. Oliver, 70 M.J. 64 (C.A.A.F. 2011).
The determination of whether an accused intended to avoid hazardous duty or shirk important service is subjective, and whether the service is “important” is an objective question dependent upon the totality of circumstances. United States v. Gonzalez, 42 M.J. 469 (1995).
The length of the absence alone is insufficient to establish an intent to desert; however, in combination with other circumstantial evidence, it may be sufficient. United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
The totality of circumstances surrounding the offense can negate specific intent to absent oneself permanently. United States v. Logan, 18 M.J. 606 (A.F.C.M.R. 1984).
Having an understandable or laudable motive to desert is not a defense if the evidence sufficiently establishes the elements. United States v. Gonzalez, 39 M.J. 742 (N.M.C.M.R. 1994), aff’d 42 M.J. 469 (1995).
Evidence of an accused’s motive to quit her unit as gesture of protest because of moral or ethical reservations that the unit might commit war crimes is irrelevant to a charge of desertion with intent to avoid hazardous duty or shirk important service. United States v. Huet-Vaughn 43 M.J. 105 (C.A.A.F. 1995).
Evidence of a 26-month absence while accused was on orders for a war zone and where he was apprehended a long distance from his unit was sufficient to establish intent to desert. United States v. Mackey, 46 C.M.R. 754 (N.C.M.R. 1972).
Evidence of a two-year absence in vicinity of assigned unit, termination by apprehension, and a previous absence, despite retention of an identification card, was sufficient to show an intent to desert. United States v. Balagtas, 48 C.M.R. 339 (N.C.M.R. 1972).
The intent to remain away permanently need not coincide with the accused’s departure. A person must have had, either at the inception of the absence or at some time during the absence, the intent to remain away permanently. MCM, pt. IV, ¶ 9.c.(1)(c)(i).
In a case where desertion with intent to shirk important service was charged, infantry service in Vietnam was held to be “important service.” United States v. Moss, 44 C.M.R. 298 (A.C.M.R. 1971). See also United States v. Hocker, 32 M.J. 594 (A.C.M.R. 1991) (accused’s plea provident to desertion with intent to avoid hazardous duty where service was duty in Persian Gulf).
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CPT Mark Gonzalez
Capt. Lance Gallardo, you are a lawyer man and I have to trust guys like you to keep me straight on legal advice. When I read the accounts he is guilty. So I turn to a guy like you and say what do we have and not have. All the little nuances to me are just semantics and things for lawyers to debate, but in my heart his actions were completely prejudicial to good order and discipline and he needs to be punished severely. I fully understand that I'm not a lawyer and my way of thinking isn't necessarily legally fair, but in this case the guy is wrong by his own admission. Now it is just a matter of how wrong and how much of a punishment.
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Capt Lance Gallardo
CPT Mark Gonzalez LTC Trent Klug Captain Gonzalez, there is no doubt in my mind, that unless, Bergdahl is not guilty by reason of mental defect, such that he could not understand the rightness or wrongness of his conduct, he is definitely going to be convicted on some level of criminality. That is for the JAGS, Civilian Lawyers, Military Judge and the Military Jury to figure out, and then for the Convening Authority to either approve the Member's Decision (or set aside their findings of guilt) and approve the sentence adjudged or to commute the punishment. I have little sympathy for Bergdahl specifically. My interest is that the Military show the American Public and the US Army that they are capable of giving this defendant a fair trial and arriving at a just conclusion. We all know that Bergdahl could have just refused to go on the next mission, and he would have had his day in court, without hazarding the lives of the men in his platoon. I am not pro Bergdahl to any degree.
In 2010, I represented for free a family of a service-member who killed himself in Afghanistan, who asked that I read the Official Death Investigation for their son and give them my comments. I did and I told them that the members of his infantry squad and platoon did their best to check in on his emotional state when they knew he got a dear John Letter from his first serious girlfriend. He told everyone he was "good to go." He then left a very detailed suicide note, APOLOGIZING TO HIS SQUAD MEMBERS THAT HIS DEATH WOULD LEAVE A HOLE IN THE WATCH ROTATION! He then walked out of the wire and shot himself with his M-16. I think of that young man's death and the devastation it caused his family here at home, and I think of Bergdahl's selfish actions. God Damn Bergdahl! But that is not our place to decide. Trust your fellow enlisted and Officers in his Jury to do the right thing and arrive at Justice for Bergdahl, and for the guys he betrayed with his selfish actions!
In 2010, I represented for free a family of a service-member who killed himself in Afghanistan, who asked that I read the Official Death Investigation for their son and give them my comments. I did and I told them that the members of his infantry squad and platoon did their best to check in on his emotional state when they knew he got a dear John Letter from his first serious girlfriend. He told everyone he was "good to go." He then left a very detailed suicide note, APOLOGIZING TO HIS SQUAD MEMBERS THAT HIS DEATH WOULD LEAVE A HOLE IN THE WATCH ROTATION! He then walked out of the wire and shot himself with his M-16. I think of that young man's death and the devastation it caused his family here at home, and I think of Bergdahl's selfish actions. God Damn Bergdahl! But that is not our place to decide. Trust your fellow enlisted and Officers in his Jury to do the right thing and arrive at Justice for Bergdahl, and for the guys he betrayed with his selfish actions!
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interesting article in the NYT and it will be even more interesting to see the results of the court martial proceedings.
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