Army Deserter Bowe Bergdahl’s Conviction Reinstated After Court Rules Judge Lacked Authority

A federal appeals court has ruled that a district judge lacked the authority to throw out the 2017 court-martial conviction of former Army soldier Bowe Bergdahl for desertion and misbehavior before the enemy.

Bowe Bergdahl left his post in Afghanistan in 2009 and was held by Taliban-allied fighters for about five years before a 2014 prisoner swap. He had his conviction vacated in 2023 by U.S. District Judge Reggie Walton.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit vacated that decision and ordered the case dismissed, concluding that only military tribunals can vacate a court-martial judgment, according to Courthouse News Service. This reinstates the judgment without deciding whether the claim that led to his 2023 reversal had any merit.

The ruling was unanimous. Judge Robert Wilkins, a nominee of former President Barack Obama, wrote the opinion, joined by Chief Judge Sri Srinivasan, another Obama nominee, and Judge Gregory Katsas, a nominee of President Donald Trump.

The authority to review a court-martial judgment belongs to military tribunals granted direct appellate review rather than a federal district court weighing an indirect challenge, Wilkins wrote.

“Bergdahl’s claim thus conflicts with that longstanding limitation,” he wrote.

In its order, the panel sent the case back to Walton with instructions to dismiss it.

What the Decision Doesn’t Say

The decision hinged on the district court’s power, not on the strength of Bergdahl’s underlying argument.

The panel did not find that the conflict-of-interest concern behind the 2023 reversal was baseless, and it did not resolve whether the issue violated his rights.

Credit: Gerry Broome AP

It held only that Bergdahl had sought a remedy the district court was not empowered to provide.

Describing the decision as an appellate finding that his conviction was valid on the merits would be inaccurate.

2023 Ruling That Was Reversed

Walton had vacated the conviction after finding that the military judge in the case, Col. Jeffrey Nance, created a potential conflict of interest.

Nance did not disclose that he was applying for a job as an immigration judge with the Justice Department while presiding over Bergdahl’s court-martial.

He submitted one of his rulings from the case as a writing sample for that application. Bergdahl and his attorneys did not learn of the application during the proceedings.

Credit: Gerry Broome AP

With the district court ruling vacated, the consequences of the 2017 judgment again apply. They include a dishonorable discharge, a reduction to the lowest enlisted rank, plus a $10,000 forfeiture.

Underneath it All

Bergdahl walked off his post in eastern Afghanistan in 2009 and was captured by the Taliban-allied Haqqani network, which held him for nearly five years.

He was freed in 2014 in an exchange for five Taliban detainees held at Guantanamo Bay, a swap that drew sharp criticism at the time. Several service members were wounded during the search for him.

Bergdahl pleaded guilty in 2017 to desertion and misbehavior before the enemy. Prosecutors had sought 14 years in prison. However, a military judge instead imposed the discharge, rank reduction, and forfeiture.

A challenge to a court-martial judgment runs through the military appeals system, including the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces.