The judge, Army Col. Jeffery R. Nance, closed the court before noon Thursday to deliberate. In addition to the desertion charges, Bergdahl, 31, also has pleaded guilty to misbehavior before the enemy, which carries a maximum life sentence. Nance is expected to make his decision as early as Friday.
Maj. Justin Oshana, the government’s lead prosecutor, condemned Bergdahl’s decision to leave his base in Afghanistan’s Paktika province on June 30, 2009. Bergdahl was taken prisoner by the Taliban, who regularly tortured him during five years of captivity. His disappearance triggered “dangerous, hasty missions” to recover him, Oshana said, adding Bergdahl’s decision “wasn’t a mistake, it was a crime.”
Several troops involved in the search sustained serious wounds during the search effort. Among them was Master Sgt. Mark Allen, who was shot in the head during a mission to collect intelligence on Bergdahl’s whereabouts. His wife, Shannon, told the court Tuesday that her husband no longer can speak, walk or care for himself as a result.
“Mark Allen is in pain all of the time,” Oshana said. “The only difference is that Sgt. Bergdahl can tell someone where his pain is. Master Sgt. Allen cannot.”
Bergdahl, he said, “does not have a monopoly on suffering as a result of his choices.”
Nance informed Bergdahl that a dishonorable discharge from the Army would be socially stigmatizing and block him from economic opportunities, including generous home loans offered through the Department of Veterans Affairs, and the GI Bill, which provides education benefits to troops and veterans. Bergdahl told the judge that he understood and that the recommendation from his defense team reflects how desperately he hopes to avoid further confinement.
Capt. Nina Banks, who gave the defense’s remarks, said the punishment for Bergdahl’s “horrible decision” to leave his base was mostly paid out by his years in captivity, during which he was severely beaten and suffered lasting physical and mental injuries. The prosecution, Banks argued, aims to discipline Bergdahl at the level of retribution.
Bergdahl’s punishment, she added, should not be “an eye for an eye.”
Nance also should weigh Bergdahl’s diagnosis of a schizophrenia-like illness, which an expert said distorted Bergdahl’s ability to think through the consequences of his actions, Banks said.
She called a dishonorable discharge the appropriate punishment.
Banks also cited President Trump’s inflammatory rhetoric during his bid for the White House, when he called Bergdahl a “dirty, rotten traitor,” prompting cheers from his supporters. That has worsened Bergdahl’s hyper-vigilance and prompts him to be on guard to fend off potential attacks by someone who shares those opinions, she said.
Trump’s comments, Banks added, satisfy another factor Nance should consider: As commander in chief, he sent a message “loud and clear” to all troops that Bergdahl’s offenses were severe, making deterrence redundant.
Appearing on the witness stand Tuesday, Bergdahl said he repeatedly tried to escape his captors because he did not want the Taliban to declare victory through the propaganda value of his confinement, which Banks encouraged the judge to weigh.
“They didn’t win, your honor,” Banks said to Nance. “Sergeant Bergdahl didn’t win either.”
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