FORT BRAGG, N.C. >> Prosecutors were rebuffed from harnessing the most contentious issue surrounding the court martial of Army Sgt. Bowe Bergdahl when a judge ruled out any evidence that soldiers were wounded while searching for him.
The judge, Army Col. Jeffery Nance, decided Friday to disallow any such evidence because, he said, the risk is too great that it military jurors would act on emotion rather than logic, creating an unfair bias against the defendant.
Nance wrote that there’s “ample” other evidence supporting the argument that Bergdahl’s comrades undertook dangerous search missions in Afghanistan that brought them into contact with the enemy.
“However, the government may not put on evidence of actual injuries suffered by any service members in conducting operations to recover the accused,” he wrote.
Bergdahl is charged with desertion and misbehavior before the enemy; the latter could put him in prison for life. Bergdahl has said he walked off his post in 2009 to alert higher-ups to what he felt were problems with his unit.
Questions about whether soldiers were injured or killed searching for Bergdahl have long surrounded the case. President-elect Donald Trump is among the critics who repeated claims that lives were lost.
However, a general who investigated Bergdahl’s disappearance has testified that he found no evidence that service members died searching for him.
Prosecutors have focused on soldiers wounded during a firefight involving a half-dozen U.S. service members embedded with 50 members of the Afghan National Army, about a week after Bergdahl left his post. An officer involved in that mission has testified that its sole purpose was to find him.
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, and prosecutors say he uses a wheelchair and is unable to communicate. Another soldier had hand injuries because of a rocket-propelled grenade.
But Nance wrote that “the accused is not charged with causing anyone’s injury or death. He is charged with endangering the command. While there are similarities in those consequences, they are distinct.”
His ruling described his concern that jurors would be unfairly prejudiced by the injuries.
“The accused is not to be convicted because, while searching for him, his comrades were horrifically injured. Even (perhaps especially) hardened combat veterans of many deployments who might sit on this panel would be hard pressed not to be affected by the horrific injuries to SFC Allen, in particular,” he wrote. “Since the danger can be avoided, I deem it should be.”
Prosecutors have argued that the injuries are the strongest evidence that Bergdahl endangered his comrades by triggering dangerous search missions.
One of the prosecutors, Army Maj. Justin Oshana, told the judge Friday that military jurors, compared to civilians, are “much less likely to be susceptible to unfair prejudice.”
But defense attorney Army Maj. Oren Gleich said many factors — some having little or nothing to do with Bergdahl — coalesced in the mission that left the men wounded. The defense has presented evidence that the mission was shoddily planned, even by the standards of the missing-soldier alert Bergdahl caused.
“You have to factor in all the intervening causes as to what created a dangerous situation,” Gleich said.
Bergdahl, who was swiftly captured after walking off his post and held captive for five years by the Taliban and its allies, hasn’t decided whether to have a trial by jury or judge alone.
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 who accused Obama of jeopardizing the nation’s safety. But the Joint Chiefs of Staff unanimously supported the exchange to uphold their commitment to never will leave anyone behind on the battlefield.
Bergdahl, who’s from Hailey, Idaho, has asked Obama to pardon him before leaving office.