DC Circuit reinstates Bowe Bergdahl court-martial conviction after judge overstepped
A D.C. Circuit panel ruled a federal judge lacked authority to vacate Bergdahl's desertion court-martial. The case is remanded for dismissal.
DC Circuit: federal court had no authority to void Bergdahl court-martial
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled Tuesday that a federal district judge had exceeded his authority when he voided the court-martial conviction of Army soldier Robert "Bowe" Bergdahl, who was dishonorably discharged for deserting his unit in Afghanistan in 2009, Courthouse News Service reports.
Bergdahl left his post without permission, later saying he intended to report poor conditions and leadership failures within his unit. He was captured almost immediately by the Taliban-allied Haqqani network and held hostage for five years. President Barack Obama approved a prisoner swap in 2014, exchanging five Taliban detainees held at Guantanamo Bay for Bergdahl's release.
Federal courts lack jurisdiction on collateral review
U.S. Circuit Judge Robert Wilkins, writing for the panel, explained that the authority to review a court-martial judgment belongs exclusively to military tribunals empowered with direct appellate review — not to federal district courts acting on collateral challenges under Article III of the Constitution. Senior U.S. District Judge Reggie Walton, a George W. Bush appointee, had granted Bergdahl's request to vacate the court-martial judgment; the circuit panel determined he could not lawfully do so.
Wilkins pointed to four service-specific Courts of Criminal Appeals — for the Army, the Navy and Marine Corps, the Air Force, and the Coast Guard — each composed of panels of at least three military or civilian judges. Further appeals proceed to the Court of Appeals for the Armed Forces, a court of record with five civilian judges serving 15-year terms. Since 1983, the Supreme Court has held the sole Article III authority to directly review decisions from that court by writ of certiorari.
Wilkins quoted from the 2018 case Ortiz v. United States: "The [Court of Appeals for the Armed Forces] must review certain weighty cases (including those in which capital punishment was imposed,) and may grant petitions for review in any others."
The 1983 Supreme Court decision in Chappell v. Wallace had opened the door to some judicial oversight of court-martial proceedings, but only for specific forms of relief — habeas petitions from military prisoners, Tucker Act claims for back pay, or military correction board decisions regarding records. That authority, Wilkins wrote, does "none confer authority to vacate the military judgment itself."
Wilkins was joined by Chief U.S. Circuit Judge Sri Srinivasan and U.S. Circuit Judge Gregory Katsas, an Obama appointee and a Trump appointee, respectively. The case is remanded to Walton with instructions to dismiss Bergdahl's petition.
Court-martial, guilty plea, and sentencing
Military authorities brought court-martial charges against Bergdahl on March 25, 2015, citing desertion with intent to shirk hazardous duty and misbehavior before the enemy under the Uniform Code of Military Justice. The Army prosecuted the case before the general court-martial at Fort Bragg, North Carolina, between 2015 and 2017.
During those proceedings, Bergdahl filed three motions to dismiss on grounds of unlawful command influence, pointing to public statements by then-Senator John McCain — at the time chairman of the Senate Armed Services Committee — and by Donald Trump, first as a presidential candidate and later as president.
McCain had indicated that if Bergdahl received no punishment, the Senate Armed Services Committee would convene its own hearing, noting that several soldiers were injured during search operations after Bergdahl's disappearance. Presiding military judge Colonel Jefferey Nance denied the first dismissal motion on Sept. 28, 2016, ruling that no member of Congress, including the committee chairman, holds command authority over the military.
Trump, as a candidate, had called Bergdahl a traitor and suggested he deserved the death penalty. Nance denied the second dismissal motion as well, acknowledging Trump's comments were "disturbing and disappointing" but noting they were made as a private citizen running for office — insufficient to constitute unlawful command influence.
On Oct. 16, 2017, Bergdahl pleaded guilty to one count of desertion and misbehavior without a pretrial agreement or a waiver of his dismissal claims. That same day, Trump declined to comment on the plea, citing his prior statements, and Nance submitted his order denying Bergdahl's dismissal motion as a writing sample for an immigration judgeship application — a detail that prompted Bergdahl to renew his challenge to the judge's impartiality. Nance allowed defense counsel to examine him on the matter before denying the third dismissal motion as well.
On Nov. 3, 2017, Bergdahl was sentenced to a dishonorable discharge, reduction to the lowest enlisted pay grade, and forfeiture of $10,000 in pay and allowances. No prison sentence was imposed — a decision that drew sharp public criticism from Trump.
Bergdahl subsequently challenged his conviction in federal district court, arguing for collateral review of what he described as an unconstitutional conviction and asserting that his due process rights had been violated by the pattern of public pressure on military proceedings. That challenge has now been foreclosed by the circuit court's ruling on jurisdictional grounds.
Source: Courthouse News Service