Why Bergdahl court martial won't begin until new president takes office

On Tuesday, Col. Jeffrey Nance delayed the court-martial of Army Sgt. Bowe Bergdahl until February 2017 to give his lawyers time to settle a dispute over documents.

Andrew Craft/The Fayetteville Observer via AP
Army Sgt. Bowe Bergdahl, center, arrives at the Fort Bragg courtroom facility for an arraignment hearing on Tuesday, May 17, 2016 on Fort Bragg, N.C. On Tuesday, Col. Jeffrey Nance, who is overseeing the case, delayed Sgt. Bergdahl's court martial until February 2017.

Bowe Bergdahl, the Army sergeant who walked off his post in 2009 and spent five years imprisoned by the Taliban, won't face a court-martial until a new US president takes office, a judge ruled Tuesday.

The judge, Col. Jeffrey Nance, said he would delay Sgt. Bergdahl’s trial from this August to February 2017 to resolve issues over his defense team’s access to classified documents.

The case has drawn a significant amount of controversy since Bergdahl was released from captivity in 2014 after being swapped by President Obama for five Guantanamo Bay detainees. He now faces charges of desertion and "misbehavior before the enemy," a more unusual charge that carries the potential of life in prison.

But the trial will now begin only weeks after a new president is sworn in, a move that would likely mean either Hillary Clinton, seemingly the presumptive Democratic nominee, or Donald Trump, who has harshly criticized Bergdahl, would become that nation's commander in chief. 

Lawyers for Bergdahl have previously sought a meeting with Mr. Trump, saying the brash New York billionaire’s comments that Bergdahl was a "traitor, a no-good traitor, who should have been executed” have undermined his chance at a fair trial.

“I request to interview you as soon as possible about your comments about Sergeant Bergdahl during frequent appearances in front of large audiences in advance of his court-martial," wrote attorney Army Lt. Col. Franklin Rosenblatt in a letter to Trump’s New York office on US Army letterhead in March.

The case hasn’t yet gone to trial, but many aspects have been hotly debated and dissected, including in a second season of the podcast “Serial.” As information emerged about his capture by the Taliban, some Republican lawmakers questioned whether Bergdahl’s actions endangered other soldiers.

Other details been revealed in documents released by his lawyers, including revelations that he was diagnosed with a schizotypal personality disorder when he left the post and that he was discharged from the Coast Guard after suffering a panic attack.

On Tuesday, Col. Nance ruled that media oulets could hire a stenographer to document discussions during the trial and gave Army prosecutors a week to provide reporters online access to court documents.

But the judge didn’t rule on a thornier dispute over what punishment Bergdahl could face if he is convicted.

The Army’s primary investigating officer recommended that Bergdahl face no jail time last year, finding that there was no evidence that any service members were killed or wounded while searching for him in Afghanistan. A judge who oversaw a preliminary hearing in September 2015 also recommended against a bad-conduct discharge.

But in December, Gen. Robert Abrams, who leads the Army Forces Command at Fort Bragg, overruled those recommendations, siding with an Army lawyer’s recommendation that he face a court martial.

Bergdahl’s lawyers have argued that the Army lawyer’s advice was “incomplete” and “prejudicially misleading.”

Trump, who has previously drawn criticism of his own for comparing his time at a military prep school to military service, has particularly made a target of Bergdahl. At one point, he suggested he should be thrown from a plane.

Those comments have little impact on the case now, Rachel VanLandingham, a former Air Force lawyer who now teaches at Southwestern Law School in Los Angeles told the AP, but that could change if he is elected in November.

Then, defense lawyers could argue more effectively that as commander-in-chief, Trump was unfairly influencing Army leaders to secure a conviction, she said.

Bergdahl has also faced threats to his life that led officials at Fort Sam Houston in Texas, where he is working an administrative post, to take precautions, the AP reports.

The new season of “Serial,” which featured interviews with Bergdahl conducted by screenwriter Mark Boal, helped shed light on the central question of whether his actions endangered fellow soldiers. Despite some beliefs to the contrary, the podcast reported, his decision didn’t put other soldiers in danger.

While it explored thorny questions of loyalty and honor during war, the podcast wasn’t always a riveting listening experience, writes the Guardian’s Melissa Locker.

“Serial’s second season did not leave anyone (save Bergdahl’s defense team, perhaps) on the edge of their seat,” she writes. “In the end, it was like listening to a thinkpiece read aloud over the course of three months, riveting for some and dull as dry toast for others.”

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