The U.S. Court of Appeals for the Armed Forces upheld last week the convictions and dishonorable discharge of Army Sgt. Bowe Bergdahl by the narrowest of votes: 3 to 2. But a greater majority of the judges agreed on one thing: What President Trump said about Bergdahl was, as the judges put it, “troubling,” “disturbing,” “disappointing,” “inaccurate,” “inappropriate” and “ill-advised.” Chief Judge Scott Stucky perhaps said it best when he wrote in his partial dissent, “This case is unique in modern American military jurisprudence. Let us hope that we shall not see its like again.” That same judge would have dismissed the case with prejudice because of the actions of the president and other leaders who politicized the case.
I led the team that prosecuted Bergdahl for having walked off his post in Afghanistan in 2009, later to be captured by Taliban fighters. For more than two years, we worked through millions of pages of discovery, interviewed dozens of witnesses and litigated countless motions in an effort to do the most fundamental job of a prosecutor: to seek justice.
But, as the chief judge wrote, this case was unique, and while we worked diligently to bring the case to trial, we did not do so in a vacuum. From nearly the moment that Bergdahl was released as part of a prisoner swap in 2014, the case became politicized. Critics of President Barack Obama attacked his decision to trade five high-ranking members of the Taliban for someone they labeled as a deserter, or worse, a traitor. And the misinformation campaign did not end there.
Then-national security adviser Susan Rice went on television and said that Bergdahl had served “with honor and distinction.” News outlets reported, without evidence, that five or six soldiers died while searching for Bergdahl. And then-candidate Trump turned Bergdahl into a campaign theme, called him a traitor and suggested in increasingly gruesome ways that he should be executed.
The problem is that none of it was true.
What Bergdahl did wasn’t honorable, but there also wasn’t any evidence he was a traitor. And while it’s true, as the court recognized, that a number of people were seriously wounded searching for him, no one died as a result of what he did.
I watched all of this unfold from the inside. I didn’t have to rely on an increasingly polarized choice of cable news networks to know what happened. I had the documents. I spoke to the witnesses. I sat with the people who had been hurt while trying to recover Bergdahl. I saw all the evidence.
We live in a time where truth falls victim to politically charged rhetoric and cable news trends more toward being entertainment than evidence-based journalism. It’s difficult to see past the noise.
But it’s more important now that we make an effort to do so. The truth about the Bergdahl case wasn’t broadcast on Fox News or CNN. And it certainly wasn’t present at any of the president’s campaign rallies or tweets.
I do not have a lot of sympathy for Bergdahl. His actions caused immeasurable suffering to better men and women than he could ever hope to be. But I also think back to the words of my friend, retired Navy SEAL Jimmy Hatch, whose storied career ended after he was shot searching for Bergdahl. On the stand, Hatch said he went out on that mission “because [Bergdahl] was an American, and he had a mom.”
And Bergdahl, like every American, deserved to have his actions judged, not on the campaign trail, not on cable news, but in a court of law. He did not deserve to be condemned by the president before he got his day in court. While the presidency might be the most powerful position on Earth, the responsibility to fair and impartial justice does not wane to score political points.
Our elected leaders’ words nearly cost the Army its ability to enforce good order and discipline in a war zone. Let us hope that we shall not see its like again.
Send questions/comments to the editors.
