Editor’s Note: This commentary is not about the guilt or innocence of Sgt. Bowe Bergdahl’s actions that resulted in his 5 years of captivity under the Taliban and the potential loss of life and injuries sustained by service members in the search for him. The opinions expressed pertain solely to whether Bergdahl should receive his day in military court beginning in April 2017.

Seventy-eight people received an early Christmas present in the form of a President Barack Obama pardon along with 153 others who received commuted sentences; however, Sgt. Bowe Bergdahl, an accused Army deserter who spent 5 years in Taliban captivity, wasn’t among them.

Though unusual, a presidential pardon for individuals not yet convicted for a crime is covered in Article II, Section 2, Clause 1, of the U.S. Constitution that states the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Though a President’s power to pardon a person before they’re convicted of a crime is not explicitly stated in the Constitution, a court case in 1867 held that a President’s pardoning power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Justice Stephen J. Field who wrote the majority opinion in the 1867 case also noted that the President’s pardoning power was “unlimited.” Perhaps most notably, President Gerald Ford pardoned disgraced ex-President Richard Nixon when Ford took office before Nixon was brought up on charges stemming from the Watergate scandal.

In an article by Scott Bomboy for the Constitution Daily titled “Explaining President Obama’s outgoing pardon powers,” Bomboy explains that President Obama has
the lowest pardon rate since President James Madison, which further decreases the likelihood of a Bergdahl pardon. Though Presidents typically make their highest profile pardons toward the end of their presidency, the political fallout from the May 2014 prisoner swap that led to Berghdahl’s release makes a preemptive presidential pardon in the remaining weeks of President Obama’s presidency even less likely especially when considering more high-profile cases such as Edward Snowden and even former Secretary of State Hillary Clinton.

However, White House Counsel Neil Eggleston was quoted Dec. 19 after the pardons as saying, “The president continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the president will issue more grants of both commutations and pardons before he leaves office.” However, White House Press Secretary Josh Earnest recently stated that it was unlikely the President would grant pardons to individuals who did not go through the vetting process, which typically takes years.

According to several news reports, the election of Donald Trump as the 45th President of the United States prompted Bergdahl’s lawyers to petition for a pardon. President-elect Donald Trump has condemned the actions of Sgt. Bergdahl throughout the 2016 presidential campaign. Bergdahl is set for military court martial in April 2017 accused by the military of “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty.” Article 99 of the Uniformed Code of Military Justice “misbehavior before the enemy … ” is the most serious offense and carries a potential life sentence.

Sgt. Bergdahl left his military post in Afghanistan in 2009 without permission and was promptly abducted by militants. Bergdahl’s actions set in motion an unsuccessful, years-long search for him. Many within the military community, despite the official Pentagon narrative, have attributed series injuries and possible deaths to service members in their search for Bergdahl.

Former Secretary of Defense Chuck Hagel testified before Congress in 2014 that no service members had lost their lives in the search of Bergdahl. Recently another blow was dealt to prosecutors who had hoped to use evidence of injuries sustained by service members in the search for Bergdahl in the upcoming trial. However, a Dec. 16 court ruling by Army Col. Jeffery Nance will prohibit evidence of those purported injuries in Bergdahl’s trial. The Associated Press reported that Nance said, “The accused is not to be convicted because, while searching for him, his comrades were horrifically injured.”

The prosecutors had focused their efforts on Soldiers who sustained wounds during a firefight on July 8, 2009 that involved a half-dozen service members embedded with the Afghan National Army. During the mission to rescue Bergdahl Army Sgt. 1st Class Mark Allen sustained a shot to the head that has left him in a wheelchair, unable to communicate. However, despite Army Maj. Justin Oshana, one of the prosecutors in the Bergdahl case, asserting that “the endangerment prong is one of the critical pieces of this trail,” Nance concluded that the use of the evidence would unfairly prejudice jurors. Hagel’s testimony and the decision to not include evidence of service members’ injuries sustained while in search of Sgt. Bergdahl makes the case for Article 99 more difficult for Army prosecutors to prove.

According to a New York Times report on Dec. 2, 2016, Eugene R. Fidell, Sgt. Bergdahl’s defense attorney, will file to have the charges against Bergdahl dismissed if his clemency case is still pending on Jan. 20, 2017 when Donald Trump becomes president on the grounds that Bergdahl would not be able to have a fair trial with Trump assuming the role of commander in chief. Fidell was also quoted in the same New York Times article as having issue with statements made by the Senate Arms Committee Chairman Senator John McCain, a Republican from Arizona, in which the senator called Bergdahl a deserter and “vowed to hold an oversight hearing if he went unpunished.”

Though the prosecution is unable to use evidence of injuries sustained by service members in their search for Sgt. Bergdahl, the Obama Administration is not held to the judge’s ruling when deciding on a case for clemency. The most widely reported case of injuries sustained in search for Bergdahl happened on July 9, 2009. Senior Chief Petty Officer James Hatch, a special forces operator, along with his unit received orders to conduct a rescue operation for Sgt. Bergdahl. The Special Forces Task Force had received reports that Bergdahl was being held in a location along the Afghanistan-Pakistan border and that their mission was potentially the last opportunity to rescue Bergdahl. Therefore, despite poor nighttime conditions, Hatch and his unit boarded their helicopters and proceeded with the mission.

“Even though we knew he was a deserter who was putting us in a bad spot … we went after him,” Hatch explained. “My personal motivation involved the fact that I did not want Sgt. Bergdahl’s mother to see her son executed on YouTube, as Daniel Pearl’s mother had.”

The mission quickly turned hostile as the operators landed under heavy fire by militants, which included machine-gun fire and rocket-propelled grenades. Hatch recalls, “We were rushing an entrenched enemy and had closed within 20 feet when one of them shot Remco in the face with an AK-47. Etched on my hard drive is the sight of the two rounds going into Remco, and the shocks of the bullets lifting him a bit, and pushing him back and then straight down. One of the bullets tore away much of Remco’s jaw.” Remco, a highly trained K9, had served valiantly throughout the deployment before losing his life in an attempt to rescue Bergdahl.

Despite just witnessing Remco’s violent death, Hatch pushed forward having spotted the muzzle flash of the shooter, revealing the shooter’s location. Hatch quickly engaged and destroyed the militant before receiving a career-ending and life-threatening blow.

“I had acquired a good enough sight picture of his head to know he wasn’t an American,” Hatch explained. “I saw the bullets hit. He was in a ditch, firing on his knees. As I was running, I stepped forward on my right leg and then – wham – something went through my femur, and the leg completely collapsed on me.”

While engaged with the first shooter “a panicking guy wildly firing his AK-47” hit Hatch, shattering his femur. Hatch continued, “Lying there, bleeding, I could sense the shrapnel from detonating grenades slinging through the weeds around me. Men rushed to my aid. How they saved me, under fire, is extraordinary.”

Through a yearlong battle Hatch was able to save his leg, but a career in the Naval Special Warfare that spanned 20 years ended on July 9, 2009. After 18 surgeries and 6
hospital visits in 12 months, Hatch said the “damage to my psyche has been considerable. I still live with the aftermath.”

The Army’s official narrative is that Sgt. Bergdahl left his outpost in order to report about what he perceived as wrongdoings at his outpost to an officer at another military outpost. It was concluded that Bergdahl suffered from a “severe mental disease or defect” at the time of his disappearance. However, despite the possibility of undue command influence in the form of President-elect Donald Trump’s campaign rhetoric, evidence such as Hatch’s account of the botched rescue mission for Sgt. Bergdahl, and evidence of injuries sustained by other service members such as Allen, clearly shows that the responsible course of action by the Obama Administration is to give Bergdahl his day in court by denying his request for a pardon.

“I request that Sgt. Bergdahl be held accountable for his actions, which put my unit at great risk and are the reason that I will walk with a limp for the rest of my life,” Hatch said.
However, despite Hatch’s personal feelings toward Bergdahl, Hatch expressed that Bergdahl deserves his day in court like any American. It’s clear by Hatch’s account and the numerous accounts by other service members since Bergdahl’s release from Taliban captivity in 2014, that Bergdahl’s actions fall under the prevue of Article 99 of the UCMJ. It’s also clear that President Obama’s judicious selection of those he’s pardoned would preclude Sgt. Bergdahl’s nuanced case that would prove more fruitful argued before a military court. To pardon Bergdahl instead of allowing his right to due process run its course would be a disservice to those who sacrificed in an effort to rescue him and a disservice to the military judicial process for holding service members accountable to their actions.

 

Military canine Remco Senior Chief Petty Officer James Hatch (left) and Military canine Remco Senior Chief Petty Officer James Hatch Senior Chief Petty Officer James Hatch Senior Chief Petty Officer James Hatch