Military judge: General did not destroy evidence in Bergdahl case

The general who decided to send Sgt. Bowe Bergdahl’s case to general court-martial did not destroy evidence by burning 100 letters and should not be tossed off the case, a military judge has ruled.

Gen. Robert Abrams “testified convincingly that these letters were from private citizens, not members of the military, that they were split nearly evenly in their opinions about what should be done, that he destroyed them because he found them irrelevant and because he applied a precaution in his office to shred and burn all discarded paper to prevent potential leakage of classified information, and that nothing about anything that was written any of those letters affected his decision in the least,” Army Col. Jeffery Nance wrote in the ruling.

Bergdahl is set to face a court-martial in February on charges of desertion and misbehavior before the enemy after walking off his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison. 

Bergdahl’s lawyers were hoping to reset the case by getting Abrams removed as convening authority and having a new commander decide whether a general court-martial is warranted.

In a motion last month, defense lawyers argued Abrams should be disqualified because he burned 100 letters that could have contained evidence helpful to the defense.

But Nance said the defense speculation that the letters could have contained admissible evidence is unsupported.

“Presumably, anyone who might have written Gen. Abrams who knows the accused well enough to have the knowledge to speak to his character certainly should be known by the accused and his defense counsel,” Nance added in the ruling, issued Friday. “Surely, there are a plethora of individuals who can provide such evidence if needed.”

Defense lawyers also argued Abrams should be disqualified because he was involved in the search for Bergdahl and had improper communication with the prosecution.

Nance ruled that Abram’s role as senior military adviser to the secretary of Defense during the search for Bergdahl meant he only had tangential involvement with the search.

“Gen. Abrams testified plainly, and there is zero contradictory evidence, that he was never personally involved, nor were any soldiers under his command ever involved in any efforts to recover SGT Bergdahl from enemy control,” Nance wrote.

Nance also ruled Bergdahl’s lawyers did not prove communication between Abrams and the prosecution swayed Abrams’s judgment. The communication cited by the defense involved an interview for an affidavit and requests for expert assistance. 

“In order to sustain a motion to disqualify the convening authority, the defense needs to prove that he has lost (or never had) a neutral and detached position and instead has become personally involved in the prosecution of the case,” Nance wrote. “Nothing about ex parte communications with the prosecutors in this case, in-and-of themselves, proves that to be the case.”