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Author Topic: US military obtains new video of American soldier held in captivity  (Read 11924 times)
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« Reply #100 on: March 16, 2016, 01:14:42 PM »

Trump is as bad as Obama.

Bergdahl Lawyers: Trump Attacks Damage Chances of Fair Trial

This photo provided by Eugene R. Fidell shows Sgt. Bowe Bergdahl preparing to be interviewed by Army investigators in August, 2014. (AP Photo/Eugene R. Fidell)
Associated Press | Mar 11, 2016 | by Jonathan Drew

RALEIGH, N.C. Donald Trump's ideas for punishing Army Sgt. Bowe Bergdahl include that he "should have been executed," someone should "throw him out of a plane" without a parachute or he should be dropped in terrorist territory "before we bomb the hell out of ISIS."

Bergdahl's defense attorneys argue Trump's attacks are damaging his chances for a fair trial, saying the Republican presidential front-runner keeps repeating false information in front of large audiences.

Trump is the most vocal critic to pressure the military to punish Bergdahl, though several experts say it's unlikely his comments alone can convince the judge that the soldier's due process rights were violated.

"When they get that kind of media attention, it gets information in front of a jury," said Philip Cave, a retired Navy attorney who's not involved in the case. "There is concern that all of this information ... prejudices Bergdahl in getting a fair trial."

Bergdahl, who walked off a base in Afghanistan in 2009, faces charges of desertion and misbehavior before the enemy, the latter of which carries up to a life sentence. He was held five years by the Taliban and its allies before a swap involving five Guantanamo Bay detainees, prompting criticism from some in Congress that the move threatened national security.

Court documents show Bergdahl's attorneys intend to use statements from their client's critics including U.S. Sen. John McCain to bolster their case. They also sent a letter warning Trump they may seek his testimony, and sued for access to documents that may show improper congressional influence.

Bergdahl's lawyer Eugene Fidell said Thursday that Trump hasn't responded.

"There is a point beyond which prejudicial pretrial publicity represents a due process violation and basically subverts the legal process," Fidell said by phone.

Bergdahl attacks have been a staple of Trump speeches, and they're noted in what the defense calls a "Trump Defamation Log" included in the court record. A recent version contained 30 instances through January.

Among them are variations of this statement about returning Bergdahl to the Middle East, made at a December rally in Iowa: "Let's fly him over. We'll dump him right in the middle; throw him out of the plane. Should we give him a parachute or not? I say no."

Also problematic is Trump's repetition of debunked claims.

Trump has repeatedly said lives were lost during the search for Bergdahl even though the Pentagon has said no soldiers died looking for him. The candidate frequently calls Bergdahl a "dirty, rotten traitor," but a general who investigated the case found no evidence Bergdahl was sympathetic to the other side.

"There are thousands and thousands of people who seem to consider him a plausible candidate for the nation's highest position," Fidell said. "So I have to assume some, if not many, if not all of his listeners take his comments seriously."

A spokeswoman for Trump didn't return messages seeking comment Thursday.

A Feb. 4 motion filed seeking public release of the general's investigation sheds light on defense strategy regarding damaging public statements.

The lawyers write that they plan to file a motion alleging McCain's statements unlawfully influenced the case, according to the document, which says potential witnesses have refused to speak to them because of negative publicity. McCain said in October that the Senate Armed Services Committee he chairs would review the case if Bergdahl isn't punished.

Such "unlawful command influence" arguments wouldn't apply to Trump because he's outside of the military chain of command, legal experts said. But that could change if he's elected president and the case currently delayed by a disagreement over classified documents pushes into next year.

In the meantime, the negative statements add to "the very real possibility that it will be difficult to obtain a fair court-martial for Sgt. Bergdahl," said Rachel VanLandingham, an associate law professor at Southwestern Law School in Los Angeles and former Air Force lawyer.

The defense could argue Bergdahl's due process rights were violated because negative publicity poisoned the jury pool. But she doubts the trial judge would rule in their favor, saying: "unfair in reality and unfair in legal due process terms are often different things."

Cataloguing Trump's negative comments in the court record may give defense attorneys a tool to shape the jury, which would consist of Army members, legal experts say. Bergdahl could also choose trial by judge alone.

Defense attorneys will have a chance to question potential jurors about Trump and ask the judge to remove any who admit biases, said Eric Carpenter, an assistant professor of law at Florida International University who served as an Army prosecutor and defense attorney. However, he expects most can separate what they've heard from their work on the case.

"It's going to be next to impossible for someone in the military not to have heard this stuff," he said. "That doesn't mean they're going to act on it."

http://www.military.com/daily-news/2016/03/11/bergdahl-lawyers-trump-attacks-damage-chances-fair-trial.html?ESRC=army-a_160316.nl
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« Reply #101 on: May 17, 2016, 10:26:19 AM »

Bergdahl court-martial could wait until after presidential election
Emery P. Dalesio, The Associated Press
May 17, 2016

RALEIGH, N.C. The military's case against Army Sgt. Bowe Bergdahl resumes with a pretrial hearing Tuesday that could result in his court-martial being moved until after this fall's elections.

The government has proposed delaying the start of the trial to December so classified documents can be properly reviewed and prepared.

Given the shape of the presidential campaign, that could mean Bergdahl will face military justice after voters decide in November whether the incoming commander-in-chief will be either Hillary Clinton or Donald Trump.

Bergdahl's defense is already saying the presumptive Republican presidential nominee is damaging their client's chances for a fair trial by calling him a "dirty, rotten traitor," who "should have been executed."

The 30-year-old soldier faces charges of desertion and misbehavior before the enemy. The latter charge is relatively rare and carries the potential of life in prison.

Bergdahl, of Hailey, Idaho, was quickly captured after walking off his combat post in Afghanistan in 2009. He was held as a prisoner of war for five years by the Taliban and its allies until President Obama exchanged five Guantanamo Bay detainees for his safe return, saying the U.S. "does not ever leave our men and women in uniform behind."

Obama's decision was harshly criticized. Some members of Congress said it jeopardized national security. Trump has targeted Bergdahl for scorn dozens of times on the campaign trail, saying he should have been thrown from a plane.

The defense's complaints about Trump have no bearing on the case right now, according to Rachel VanLandingham, a former Air Force lawyer who teaches at Southwestern Law School in Los Angeles. But if he is elected in November and keeps up his harsh comments about Bergdahl, the defense could more effectively argue that a President Trump is pressuring Army brass for a conviction, she said.

The lack of evidence that any service members were killed or wounded searching for the missing soldier led the Army's primary investigating officer to recommend against jail time, and a preliminary hearing officer recommended against a bad-conduct discharge.

But those recommendations were scrapped in December by the general overseeing the case. Gen. Robert Abrams, who leads the Army Forces Command at Fort Bragg, sided with an Army lawyer's recommendation for a general court-martial.

Both sides also may address Tuesday whether that Army lawyer's advice to Abrams was so incomplete that it misled the four-star general.

Meanwhile, law enforcement officials have been notified that threats against Bergdahl continue, his attorneys said in a February court filing.

"Given the many incendiary comments that have been broadcast and otherwise disseminated about Sgt. Bergdahl, his immediate commander at Fort Sam Houston has taken measures to ensure his physical safety when leaving the installation," they wrote.

A spokesman at the Texas post declined to describe these measures, citing security considerations. But as "a group of soldiers, battle buddies, we all look out for each other," Sgt. Maj. Matt Howard said.

Bergdahl can come and go the same as any other soldier from Fort Sam Houston, where he works a desk job in a headquarters unit, handling "a lot of administrative work that needs to be done. Paperwork, moving stuff from place to place, things like that," Howard said.

http://www.armytimes.com/story/military/2016/05/17/bergdahl-trial-delay-november/84484578/
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« Reply #102 on: July 08, 2016, 09:24:59 AM »

Judge allows Bergdahl lawyers to get top generals' emails
Jonathan Drew, The Associated Press
July 7, 2016

FORT BRAGG, N.C. A military judge agreed Thursday to give Army Sgt. Bowe Bergdahl access to emails from several top commanders as defense attorneys probe for evidence of whether his prosecution on charges of desertion and misbehavior before the enemy was unfairly swayed by high-ranking officials.

The judge, Col. Jeffery Nance, ordered the government to give defense attorneys emails regarding the case that were sent and received by the head of U.S. Army Forces Command and his predecessor, along with communications by others involved in decisions about how Bergdahl's case has been handled.

Nance also "strongly suggested" that prosecutors help defense attorneys arrange an interview with Gen. Robert Abrams, the four-star leader of Forces Command who decided in December to proceed with the general court martial. Abrams declined a defense request for an interview in June.

"They need to be able to sit down with him and ask him some pointed questions," Nance said during the pretrial hearing.

The defense had sought Bergdahl-related emails from dozens of military and government officials including former secretaries of defense but Nance declined the request for most of the list.

One of the prosecutors, Army Maj. Justin Oshana, told the judge that defense attorneys were asking for what amounted to an "all-access pass" to top officials' emails.

Defense attorneys have said in court filings that they are gathering information on whether the case has been tainted by unlawful command influence. They have cited evidence of private discussions between high-level military and government officials and public remarks about the case by Sen. John McCain, who leads the Senate Armed Services Committee.

After Thursday's hearing, defense attorney Eugene Fidell said he was pleased with the outcome.

"A number of the documents the judge said we have a right to see could be quite important," he told reporters.

Earlier in the day, the judge also agreed to give Bergdahl's attorneys more information on why his military service was extended by a decade.

Army Lt. Col. Frank Rosenblatt, a defense attorney, said that Bergdahl was eligible for a discharge in 2011 and should have been given the option to re-enlist or leave the military upon his return from captivity in 2014. Instead the government has chosen to keep him on active duty until 2022.

"This matter was handled entirely irregularly," Rosenblatt told the judge.

Nance ordered prosecutors to request emails about the extension decision from Army human resource officials and turn over what they find to the defense. Prosecutors had argued that the request was too broad.

Bergdahl, who's from Hailey, Idaho, faces charges of desertion and misbehavior before the enemy after walking off his post in Afghanistan 2009 and winding up in enemy captivity for five years. The Obama administration was criticized for swapping Guantanamo Bay detainees for Bergdahl.

The trial is scheduled to begin in February 2017.

Nance is also requiring prosecutors to add further labeling and organization to hundreds of thousands pages of documents that they're giving the defense. The defense had argued that some file names were simply numbers and asked for other help in weeding out irrelevant information.

"You're not providing them in a way that makes it efficient," Nance told prosecutors. "They could eventually plow through all this stuff ... and then we would be trying the case in 2020."

http://www.armytimes.com/story/military/crime/2016/07/07/bergdahl-attorneys-seek-illustrate-case-irregularities/86805676/
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« Reply #103 on: November 14, 2016, 02:46:31 PM »

Judge hears testimony about injuries during Bergdahl search
By: Jonathan Drew, The Associated Press,  November 14, 2016

FORT BRAGG, N.C. A military officer testified Monday that he saw another soldier shot in the head during the 2009 search for U.S. Army Sgt. Bowe Bergdahl, who's accused of endangering his comrades when he walked off his post in Afghanistan.

The testimony came at a pretrial hearing at which an Army judge also agreed to delay Bergdahl's trial by several months until May 15, 2017.

Prosecutors are arguing that the judge should allow evidence of two wounded soldiers' injuries into the case to help them show that Bergdahl's disappearance effectively put other military members in harm's way.

Bergdahl is charged with desertion and misbehavior before the enemy, the latter of which carries a maximum penalty of life in prison.

U.S. Air Force Maj. John Marx testified about a firefight on July 8, 2009, when he and several other U.S. military members were seeking information on Bergdahl's whereabouts, with members of the Afghan National Army. They were attacked after setting up a checkpoint near a town in Afghanistan.

One of the two wounded soldiers cited by prosecutors is U.S. Army National Guard Sgt. First Class Mark Allen. Prosecutors said he was shot in the head and suffered a traumatic brain injury that has left him in a wheel chair. Another soldier had hand injuries and required surgery because of a rocket-propelled grenade.

Marx, who said the mission's sole purpose was to search for Bergdahl, testified that he was sitting next to Allen as bullets flew overhead.

"I looked at him, then I see a trickle of blood coming down his head," Marx testified. Asked where Allen was wounded, Marx pointed at his temples and said: "Right through his head."

Marx testified that he later carried Allen to the medevac helicopter, describing it as "probably one of the toughest things I've ever done in my life."

Bergdahl, dressed in a white shirt and blue pants, appeared stoic as he listened to Monday's testimony.

Prosecutors have written in a motion that the injuries will help them show that Bergdahl endangered his comrades, one of the elements of the misbehavior before the enemy charge. They asked the judge to allow them to use the evidence in their case.

Defense attorneys have argued in motions that Bergdahl was not responsible for the men's injuries, writing: "Allen's injuries were directly caused by the Taliban, not by SGT Bergdahl."

Further testimony and arguments are expected Monday afternoon.

Before the testimony on the soldiers' injuries, Army Col. Jeffery Nance decided to push the trial back to May after prosecutors requested a delay. They cited the pace at which they're able to get approval to give the defense classified evidence.

Defense attorneys also informed the judge that they were still waiting on software, computers and security equipment that would allow them to review some of the sensitive material.

Nance expressed frustration and told prosecutors that he would call military officials as witnesses at a pretrial hearing in December if some of the issues with classified information aren't resolved.

"Here's my problem folks ... We will nickel and dime this until we're not trying this case until 2020," he said.

Bergdahl, who's from Hailey, Idaho, walked off his post in Afghanistan in 2009 and was held captive by the Taliban and its allies for five years. The Obama administration's decision to swap prisoners for his return was heavily criticized by some Republicans.

https://www.armytimes.com/articles/judge-hears-testimony-about-injuries-during-bergdahl-search
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« Reply #104 on: December 16, 2016, 02:47:50 PM »

Bergdahl bears some responsibility for risky missions to find him, judge says
Published December 16, 2016
FoxNews.com
 
A judge on Friday suggested the military would not let Army Sgt. Bowe Bergdahl off easy for walking off his post in Afghanistan, saying the soldier indeed bore some responsibility for the risky missions to find him.

Still, the judge, Army Col. Jeffery Nance, ultimately ruled at a pretrial hearing that prosecutors could not use evidence of soldiers' serious wounds suffered while they searched for Bergdahl. One soldier was shot in the head and suffered a traumatic brain injury; the other required hand surgery.

The 30-year-old sergeant, who was swiftly captured after walking off his post in 2009 and held captive for five years by the Taliban and their allies, hasn't decided whether to have a trial by jury or judge alone at his court martial, scheduled for April 2017.

He is charged with desertion and misbehavior before the enemy; the latter could put him in prison for life. Bergdahl has said he walked off intending to alert higher-ups to what he felt were problems with his unit.

"Sgt. Bergdahl is not responsible for a never-ending chain of events ... But he is responsible for a certain amount of that chain of events," Nance said at the hearing at Fort Bragg in North Carolina.

The Obama administration's decision in May 2014 to exchange five Taliban prisoners held at Guantanamo Bay, Cuba, for Bergdahl's freedom prompted criticism from Republicans including President-elect Donald Trump, who accused Obama of jeopardizing the nation's safety.

Bergdahl, from Hailey, Idaho, asked Obama to pardon him before leaving office.

One of the prosecutors, Army Maj. Justin Oshana, said Friday evidence of the injuries showed Bergdahl endangered his comrades, and "the endangerment prong is one of the critical pieces of this trial."

But defense attorney Army Maj. Oren Gleich said many other factors that had little or nothing to do with Bergdahl coalesced into the hastily planned mission during which the two soldiers were wounded.

"You have to factor in all the intervening causes as to what created a dangerous situation," Gleich said.

Prosecutors have not mentioned any deaths of service members linked to the search for Bergdahl, Stars and Stripes reported.

Prosecutors said they wanted to use evidence related to a particular search mission involving half a dozen U.S. service members embedded with 50 members of the Afghan National Army. Another officer involved in the mission has previously testified that its sole purpose was to search for Bergdahl.

The group was attacked near a town in Afghanistan on July 8, 2009. U.S. Army National Guard Sgt. 1st Class Mark Allen was shot in the head during the firefight; prosecutors say he uses a wheelchair and is unable to communicate. Another soldier had hand injuries because of a rocket-propelled grenade.

Defense attorneys have presented evidence that the mission was shoddily planned, even by the standards of the missing-soldier alert Bergdahl caused. They also questioned whether the wounded soldiers fell within the specific group of military units Bergdahl is accused of endangering.

Also on Friday, Nance said he wasn't going to require testimony from government intelligence officials -- despite threatening to do so -- because progress was made on providing classified evidence to the defense.

The Associated Press contributed to this report.

http://www.foxnews.com/us/2016/12/16/bowe-bergdahl-due-in-court-for-pretrial-hearing.html
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« Reply #105 on: February 28, 2017, 01:46:26 PM »

Judge rules against dismissing charges against Army Sgt. Bowe Bergdahl
By Eugene Scott, CNN
Sun February 26, 2017

(CNN) A military judge has ruled against dismissing charges against Army Sgt. Bowe Bergdahl despite his lawyers' claim that President Donald Trump violated their client's due-process rights.

Bergdahl faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014.

During the 2016 presidential campaign, Trump said Bergdahl "should be shot" for walking off his post. Trump also said that "in the good old days, he would have been executed."

The White House did not respond immediately to a request for comment Saturday on the judge's ruling.

After Trump became president, Bergdahl's lawyers argued the judge should dismiss the charges against their client because of Trump's comments, contending that it would not be possible for Bergdahl to get a fair trial.

But Army Col. Jeffery Nance wrote Friday that while Trump's comments were "troubling," they did not constitute a sufficient due process violation.

"The comments by Mr. Trump that might be considered pretrial publicity are not so pervasive and unfair as to saturate the community and prevent any trier of fact from being impartial," Nance wrote. He added: "Mr. Trump has said nothing about the accused or his case since August 2016. Under these facts, the court cannot find a due process violation sufficient to make amelioration measures futile."

Eugene Fidell, Bergdahl's chief defense lawyer, told CNN on Saturday that his legal team will take the case to the U.S. Army Court of Criminal Appeals on Monday.

"The military judge's decision was wrong," Fidell added. "Extraordinary relief is required to protect Sgt. Bergdahl's rights to protect the integrity of the military justice system."

Since the officers who could help decide the outcome of Bergdahl's case ultimately report to the President, Fidell argued that Trump's statements constituted "unlawful command influence" -- the idea that anyone with the "mantle of command authority" could wrongly take actions that influence decisions about a defendant.

Trump "has tremendous influence over the entire system," Fidell told CNN.

http://www.cnn.com/2017/02/25/politics/bergdahl-trump-judge-dismiss/
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« Reply #106 on: August 21, 2017, 11:11:33 AM »

Bowe Bergdahl chooses to have trial heard by judge and not jury
Published August 21, 2017
Associated Press

RALEIGH, N.C.   Army Sgt. Bowe Bergdahl has decided be to tried by a judge not a military jury on charges that he endangered comrades by walking off his post in Afghanistan.

Bergdahl's lawyers told the court in a brief filing last week that their client chose trial by judge alone, rather than a panel of officers. He faces charges of desertion and misbehavior before the enemy at his trial scheduled for late October at Fort Bragg. The latter carries a maximum sentence of life in prison.

Defense attorneys declined to comment on the decision. But they previously questioned whether Bergdahl could get a fair trial by jury because of negative comments President Donald Trump made on the campaign trail.

Earlier this year the judge, Army Col. Jeffery R. Nance rejected a defense request to dismiss the case over Trump's criticism of Bergdahl.

Potential jurors had already received a questionnaire including questions about their commander in chief, but defense attorneys weren't allowed to ask jurors if they voted for Trump.

Rachel VanLandingham, a former Air Force lawyer not involved in the case, said defense attorneys likely felt limited in how they could probe juror opinions.

"They lost their ability to ask all the questions they wanted to ask, one of those being: 'Did you vote for President Trump?'" said VanLandingham, who teaches at Southwestern Law School in Los Angeles. "They felt that was very important ... for fleshing out whether a panel member could be fair."

Beyond concerns about jurors, she said Nance has so far demonstrated his objectivity.

"His pretrial rulings have shown that he's fair," she said.

Bergdahl was captured by the Taliban shortly after he left his remote post in 2009. The soldier from Idaho has said he intended to cause alarm and draw attention to what he saw as problems with his unit.

He was freed from captivity in 2014 in exchange for five Taliban prisoners. Former President Barack Obama was criticized by Republicans who claimed the trade jeopardized the nation's security.

Bergdahl has been assigned to desk duty at a Texas Army base pending the outcome of his case.

http://www.foxnews.com/politics/2017/08/21/bowe-bergdahl-chooses-to-have-trial-heard-by-judge-and-not-jury.html
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