SAN ANTONIO (Tribune News Service) — Lawyers for Sgt. Bowe Bergdahl, who was held prisoner by the Taliban for nearly five years after abandoning a remote Army outpost in Afghanistan and faces criminal charges for leaving his unit, on Friday accused his top commander of burning more than 100 letters regarding the case.
The defense, in a court motion, asked a judge to remove Gen. Robert Abrams from the case and to cancel a scheduled Feb. 6 trial because Abrams told Bergdahl’s defense team Monday that he burned the letters, which were sent to him by supporters and detractors of their client.
The motion also said Abrams, head of the Army’s Forces Command, failed to review a list of defense objections and comments provided Oct. 9 before he ordered Bergdahl’s trial, choosing not to read them because “he claimed it was written ‘for the lawyers.’”
It said Abrams “suggested that if the defense wanted him to read the submission, it should be written in ‘plain-speak,’” which one outside observer called a “legally fatal” blunder that could convince the judge to throw out the charges.
Abrams serves as the “convening authority” of Forces Command, a role in which he routinely decides whether soldiers facing serious charges go to trial. He also reviews trials after they are decided.
Two months after the defense submission, Abrams had ordered Bergdahl to stand trial at Fort Bragg, North Carolina, on charges of desertion and misbehavior before the enemy by endangering the safety of a command, unit or place, the latter charge punishable by up to life in prison.
Bergdahl, 30, of Hailey, Idaho was captured after leaving his combat outpost in 2009. Released in May, 2014, he was brought to Joint Base San Antonio-Fort Sam Houston for care under a long-established program for former prisoners of war and has remained here.
The defense asked that a new commander decide how to respond to recommendations by Lt. Col. Mark Visger, who presided over a fact-finding hearing here last year, that Bergdahl face a special court-martial and a maximum punishment of only one year in jail.
A Forces Command spokesman, Paul Boyce, said the court would take up the motion, perhaps as early as Aug. 22.
Retired Air Force Lt. Col. Rachel Vanlandingham, a professor at Southwestern Law School in Los Angeles, called Abrams’ review of the defense materials a “critical junction” before he ordered the trial.
“He only has to consider it — he doesn’t have to agree with it — but he admitted he didn’t consider it because he felt it wasn’t written plainly enough,” she said. “I think it’s buffoonery. I think it falls far below the standard we expect our convening authorities to adhere to.”
The defense motion called Abrams’ decision to not read its submissions “disturbing evidence that he was not impartial or, in the alternative, that he could not be bothered to hear from the defense when exercising a critical quasi-judicial function.” It said Abrams made things worse by his “baffling” decision to burn the letters, which “spanned the full spectrum of opinion, and came from all types of people and on both sides of the case.”
“When defense counsel asked to see the letters, Gen. Abrams revealed that he had destroyed them by burning,” the motion states, and this prevented “both the court and the defense from knowing precisely how many such letters there were, what they actually said, and, importantly, who wrote them and how we might get in touch with those individuals. This damage is irreparable.”
Vanlandingham said the letters weren’t a major issue, explaining, “There is nothing in the rules for court martial that says the public gets to weigh in with a convening authority.”
Retired Army Lt. Col. Jeffrey Addicott, a professor at St. Mary's University School of Law, agreed that the letters weren’t evidence, but “personal correspondence of people not involved” in the case.
“Obviously the defense is throwing mud against the wall to see what sticks for future appeal issues,” Addicott said, adding that he would have advised Abrams to save the letters.
But veteran defense lawyer Frank Spinner, known for successfully representing high-profile defendants, was stunned.
“Are you serious?” he asked, when told Abrams had burned the letters. “Is he stupid? Oh my gosh, I cannot even conceive of a general, No. 1, doing such a thing and, No. 2, admitting such a thing.”
©2016 the San Antonio Express-News
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