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Bowe Bergdahl Files Appeal to Dismiss General Presiding Over His Pre-Trial Hearing

Gen. Mark Milley's nomination to become the US Army’s next chief of staff creates a conflict of interest in soldier's desertion hearing, according to the soldier's defense team.
June 5, 2015, 10:20pm
Photo by Carolyn Kaster/AP

Bowe Bergdahl, the US Army sergeant recently charged with deserting his post shortly before he was captured by Taliban militants in 2009, has filed an appeal to dismiss the convening authority presiding over his pre-trial hearing.

In a petition filed to the US Court of Appeals on Friday, Bergdahl's lawyer, Eugene R. Fidell, argued that Gen. Mark A. Milley, should be relieved of his disposition authority over Bergdahl's Article 32 hearing because of a conflict of interest matter concerning Milley's pending nomination to become the Army's next chief of staff.

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US Secretary of Defense Ashton Carter announced Milley's nomination to the role last month, and the general is currently awaiting a date to be set for his confirmation hearing before the Senate Armed Services Committee (SASC), which will decide whether he can assume the Army's top job.

"In light of the extraordinary interest that body [the Senate committee] has expressed" in Bergdahl's case, Milley, who carries the sole power to decide whether to dismiss the charges against the soldier or to strike any pre-trial plea deals, cannot remain impartial in his role of convening authority over the hearing, the court petition says.

"It would be idle to pretend that it is a matter of indifference to Gen. Milley whether he is confirmed to the position for which the Commander in Chief has selected him," Fidell wrote in the appeal.

Related: What Congress Really Told the White House About the Bowe Bergdahl Swap

Earlier last month, the defense had requested Milley recuse himself of the role of convening authority, which he refused to do, without explanation, the petition says. Because "there are no other non-judicial remedies to exhaust," the appeal is the defense team's last-resort attempt to dismiss Milley from the case.

The document was filed just a day after the defense announced that Bergdahl's Article 32 hearing — a military version of a civilian grand jury inquiry — had been postponed. The hearing, which will determine whether there is enough evidence to launch a court-martial trial, has now been pushed back to September from its original scheduled date of June 8.

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Bergdahl, 28, was charged on March 25 with "desertion with intent to shirk important or hazardous duty," and "misbehavior before the enemy by endangering the safety of a command, unit, or place." The charges carry maximum sentences of five years and life in prison. The soldier was 23-years-old when he allegedly walked away from his military his base in Afghanistan's Paktika province in 2009 and subsequently captured and held for five years by Taliban insurgents and Haqqani Network allies.

The case has received continued media attention, especially after the US government negotiated the soldier's release last May in exchange for five Taliban commanders detained at the at Guantanamo Bay, Cuba. The Taliban prisoners were sent to Qatar and banned from travel abroad, while Bergdahl returned to the US to recover from his 5-year imprisonment.

The Obama administration has since come under heavy fire for authorizing the swap without Congress's prior approval, especially from lawmakers who challenged the president's decision as "illegal" and by fellow soldiers who have labeled Bergdahl as a deserter and claimed his action put others' lives in danger.

The highly politicized nature of the prisoner swap could ultimately affect Milley's ability to provide impartial judgment in Bergdahl's case, the petition argues. Especially so, because the chairman of the SASC "has publicly expressed an intent to investigate and inquire into matters directly pertinent" to Bergdahl's case, the document says.

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"Because Gen. Milley has an interest other than official in appellant's case… he is statutorily disqualified and he should not be permitted to act as GCMCA [general court-martial convening authority]," Fidell wrote.

The defense also called for a new convening authority to be appointed — one that "does not have a SASC confirmation hanging over his or her head."

Related: Travel Ban on Guantanamo Detainees Swapped for Bowe Bergdahl Set to Expire

Jason Leopold contributed to this report.

Bowe Bergdahl Files Appeal to Dismiss General Presiding Over His Pre-Trial Hearing