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Former soldier Bowe Bergdahl (left, in green) in Afghanistan; video screenshot

Bergdahl Case a ‘Pattern of Whitewash’: Lawmakers Want New Trial, Soldiers Angry After Judge Tosses Desertion Conviction

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by Susan Katz Keating

“I don’t understand this,” said former Army Sergeant Jon Morita, whose Infantry team was attacked while trying to find Bergdahl. “I’m trying to read all this legal shit, and it doesn’t make sense.”

Five lawmakers who served in the U.S. military have urged the departments of Defense and Justice to order a fresh trial for ex-Army Sgt. Bowe Bergdahl, whose desertion conviction was vacated last week by a federal judge. Former soldiers, additionally, have expressed confusion and anger over the new ruling.

Bergdahl was captured by the Taliban in 2009 after he walked away from his post in Afghanistan while at war. He was released in 2014 in exchange for five Taliban prisoners. 

READ MORE: Bowe Bergdahl‘s conviction is vacated

In a letter to Defense Secretary Lloyd Austin and Attorney General Merrick Garland, the Republican congressmen wrote that the ruling to vacate Bergdahl’s conviction is a blow to soldiers who were “endangered and potentially … killed” while searching for the missing man.

The letter was signed by Reps. Michael Waltz (R-Fla.), Dan Crenshaw (R-Texas), Jake Ellzey (R-Texas), Ryan Zinke (R-Mont.) and Guy Reschenthaler (R-Pa.) 

“This is a deeply concerning lapse of justice and one of a pattern of disturbing efforts to whitewash and even celebrate the exchange of Bergdahl for terrorists,” the lawmaker-veterans wrote.

They noted that Col. Jeffrey Nance, who oversaw Bergdahl’s 2017 court-martial, already had given a lighter sentence than the Army asked for. The federal judge last week vacated that sentence, saying that Nance had a potential conflict of interest by failing to disclose he had applied to the executive branch for a job as an immigration judge. 

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Bergdahl’s longtime attorney, Eugene Fidell, praised the federal judge’s ruling. 

“It’s an important decision, not only, obviously, for Sgt. Bergdahl, but for all of us, because we all have a stake in the rule of law,” Fidell told Soldier of Fortune. “The case had gone through the complete military justice process, yet it fell to a federal district judge, who is not part of the military justice system, to deal with, and he did. This is why the federal courts are the jewel in the crown of American democracy.”

The five lawmakers highlighted why they want the former soldier to be tried again.

Bergdahl walked off his firebase in Paktika Province, Afghanistan, “at the height of the conflict, with combat incidents rising rapidly and additional troops being deployed,” the congressmen wrote. 

“It has been estimated that as many as eight Americans died attempting to find Sergeant Bergdahl in the weeks after his desertion on June 30, 2009. During that period, a huge number of intelligence, surveillance, and reconnaissance assets in Paktika province were mobilized to search for Bergdahl, with no success,” they wrote.  

“Some of the Taliban attacks during that time, particularly on isolated outposts like the U.S. firebase at Zerok, were believed by survivors to have been more lethal because of the commitment of resources to find Bergdahl.”

The captive Bergdahl was released in 2014 in exchange for five senior Taliban leaders who were imprisoned at Camp X-Ray in Guantanamo Bay.  

“This included hardened militants who went on to assume leadership roles in the Taliban,” the lawmakers wrote.

Four of the five Taliban who were exchanged for Bergdahl.

The Bergdahl saga sparked a firestorm in national politics and within the military. The latest action has brought swift response, particularly for those who hunted for Bergdahl.

“I don’t understand this,” said former Army Sergeant Jon Morita, whose Infantry team was attacked while trying to find the missing soldier. Morita’s teammate and good friend, Master Sgt. Mark Allen, was shot in the head while on the mission, and later died. “I’m trying to read all this legal shit, and it doesn’t make sense.”

The latest news about the case has brought events more sharply into the present for the combat veteran Morita.

“It’s definitely one of those things where this whole memory thing kicks in,” said Morita, whose injuries never fully healed. “Yeah, I live with this. So I get the whole daily constant reminder.”

Morita’s combat story soon will appear on this website.

The latest ruling also resonates with those who were affiliated at the time with U.S. Central Command. 

“I hope they still hold him accountable for his actions then, whether it merits a re-trial or other actions,” said John Wagner, a former member of the Bergdahl recovery effort. “And that they do not re-adjudicate his service separation status.”  

Soldier of Fortune asked Bergdahl’s lawyer, Fidell, his response to how various populations viewed the federal court ruling.

“Some take the stance that you have to go by the letter of the law, and that’s what the judge did,” Soldier of Fortune said in a lead-up to the question. “And then I’ve got former soldiers who say Bergdahl needs to burn in hell.”

Fidell only addressed the legal component of the ruling.

The Army has 60 calendar days from the ruling that was issued on July 25. The 60th day falls on a weekend, so the deadline likely is September 25.

About Susan Katz Keating

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