The Army on Tuesday provided a behind-the-scenes look at the prosecution of Sgt. Bowe Bergdahl, releasing pages of internal court communications that show the defense thinks it is hamstrung by Donald Trump’s charge that their client is a traitor.
Prosecutors said that one soldier searching for Sgt. Bergdahl in 2009 after he abandoned his post was shot in the head. Surgeons removed part of his brain and he is confined to a wheelchair, unable to communicate. Prosecutors want to use that case as evidence in the upcoming court-martial.
The documents show the prosecution has assembled over 25,000 pages of secret documents and activated a software system to manage even more papers for an upcoming court martial, while the defense sees itself as outgunned and complain that Sgt. Bergdahl’s life is “on hold.”
Overall, eight agencies involved in the search for Sgt. Bergdahl during five years in Taliban custody amassed a file of 1.5 million classified documents that could be relevant in a trial.
The disclosures in pretrial motions and emails reveal a complex ongoing legal battle among Army lawyers that explains why the court-martial itself will not start until February 2017.
In one lengthy motion, his defense team says it needs to counter Mr. Trump and demands that the Army release its four-month investigation into Sgt. Bergdahl conducted by Army Maj. Gen. Kenneth Dahl.
The defense says Mr. Trump, the presumptive Republican presidential nominee, has vilified their client as have several Fox News commentators.
“By any measure, he has been made one of the most vilified and hated people in the United States,” the motion states. “False and incendiary statements, such as that he is a traitor (a uniquely grave offense with which he has never been charged) or that military members died looking for him, have been frequently made to huge audiences by speakers such as Donald Trump as well as by a variety of Fox News programs.
“Urban myths about alligators in the New York subways are one thing; demonstrated falsehoods concerning a pending criminal matter are quite another,” the motion says.
The lawyers claim that the Army has done nothing to rebut the charges that make it difficult for Sgt. Bergdahl to receive a fair trial before military jury members.
The defense last March posted online their client’s interview with Gen. Dahl, after the prosecution included excerpts in its legal motions. The Dahl report remains confidential. Sgt. Bergdahl told the general he walked off the outpost because he wanted to do something to ignite alarm bells about how badly the soldiers were commanded.
The Army has charged Sgt. Bergdahl with desertion and misbehavior before the enemy, which can result in life imprisonment. He was held nearly five years by the Taliban and Haqqani network before President Obama approved a prisoner swap in 2014, for five hardened Taliban leaders.
One document shows that U.S. Army Forces Command at Fort Bragg, N.C., which is hosting the trial, plans a large security force to handle the news media. At one point, the defense team objected.
“Defense opposes having plainclothes MPs in the gallery absent a demonstrated need. It’s overkill,” Lt. Col. Franklin Rosenblatt, a defense lawyer, wrote to the military judge, Col. Jeffrey Nance.
Sgt. Bergdahl has five Army lawyers representing him in court, plus civilian counsel Eugene Fidell, a noted military criminal defense attorney and a scholar at Yale Law School.
The team depicted itself as outnumbered.
“We cannot at this juncture estimate when we will be ready for trial,” lawyers wrote in one memo. “The defense has not yet seen most of the evidence in this case. We have not yet completed a review of the voluminous materials sent by the trial counsel after referral [to a trial]. Additionally, trial counsel indicate that over 25,000 pages of classified materials are potentially relevant to the case. The prosecutors brought in 10 additional attorneys — de facto assistant trial counsels — and acquired a document management software program to review even more documents.”
Another motion says that prosecutors initially let defense begin viewing classified files, but then abruptly cut them off. “The prosecutors have repeatedly insisted that they enjoy a right to access to classified information superior to that [of] the accused,” the motion says.
“At the current leisurely pace and using the government’s unnecessarily complicated process, it will be not months but years before this case is ready for trial, thus adding to the already considerable time Sgt. Bergdahl’s life has been put on hold (on top of the nearly five years he was a POW).”
“It is fundamentally unfair to let prosecutors with their platoon of lawyers and paralegals, rummage through a large body of evidence for anything favorable to their case while denying defense all access.”
The lawyers say Gen. Robert B. Abrams, Forces Command chief, denied their request to hire one outside criminal investigator, but gave no reason. The Army assembled a large team to investigate their client, they said.
The prosecution, in a February filing, said the Army has met the defense request for five lawyers, three paralegals, office space at Fort Bragg and “life support.”
“The defense does not state cognizable grounds as to ’what’ an investigator might do under the expert assistance rubric, that are more than a mere possibility, and that the five additional defense personnel cannot do,” the prosecution said.
The defense has cited the Dahl report as saying no one was killed while directly searching for Sgt. Bergdahl. His former battle mate dispute that assertion.
But there was at least one tragic casualty. Sgt. 1st Class Mark Allen was among soldiers assembled a week after the disappearance to search an area of Paktika province that U.S. forces had not patrolled for a year. Other than trying to find Sgt. Bergdahl, the mission had no other purpose.
Sgt. Allen was shot in the head.
“SFC Allen underwent medical evacuation, suffered a traumatic brain injury stroke, endured multiple surgeries to remove portions of his brain and completed extensive rehabilitation,” the prosecution said. “Now [master sergeant] retired Allen is confined to a wheelchair, unable to do basic tasks for himself, 100 percent dependent on others for daily living activities and unable to communicate.”
Prosecutors argue that Sgt. Allen is a victim of Sgt. Bergdahl’s wrongdoing and that evidence about his fate should be allowed at court-martial.
The defense argues Sgt. Allen was the victim of commanders’ negligence in not properly planning the mission.
• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.
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