Sgt. Bowe Bergdahl on Friday asked a military appeals court to disqualify the Army general overseeing the case against the Hailey native on charges of desertion and misbehavior before the enemy.
Bergdahl attorney Eugene Fidell filed a writ with the U.S. Court of Appeals for the Armed Forces seeking to disqualify Army Gen. Mark Milley from the case.
The request, filed with the court of five civilian judges in Washington D.C., said Milley should be replaced because of his pending nomination to become Army chief of staff.
Bergdahl’s team last month asked Milley to step down from the case. Milley denied the request without explanation, Fidell wrote in a court filing.
John Boyce, spokesman for the Army Forces Command, declined comment other than to say the issue would be decided by the court.
Bergdahl, 29, is scheduled to appear at a preliminary hearing on Sept. 17 at Joint Base San Antonio-Fort Sam Houston in Texas.
His preliminary hearing is similar to a civilian grand jury. From there, it could be referred to a court-martial for trial. If convicted, he could face a sentence of up to life in prison.
Officials say the Idaho native left his post in Afghanistan and was captured by the Taliban. He was released in a prisoner exchange for five Taliban commanders.
An initial U.S. military investigation in 2009 concluded that Bergdahl deliberately walked away, based on evidence available at the time. Since his release, some former soldiers who served with him have labeled him a deserter and said he should be held accountable for leaving his post. Others have suggested that troops were put in danger, and even killed, as they tried to find Bergdahl.
In overseeing the case, Milley has the sole authority to dismiss the charges or agree to a pretrial agreement with Bergdahl.
Fidell took the request to federal court, he said, because no military judge has authority to act because the charges have not been referred for trial.
Sen. John McCain, chairman of the Senate Armed Services Committee, has been one of the top critics of the Obama administration’s trade of Bergdahl for five Taliban leaders. The deal to swap prisoners with the Taliban enraged McCain and other members of Congress who complained the administration violated requirements to inform lawmakers of any such transfer 30 days in advance.
McCain has said his committee plans a full investigation into Bergdahl’s 2009 disappearance and the trade to get him released in May 2014. Fidell said that could increase pressure on the Army to pursue charges and a stiff sentence against Bergdahl rather than settle the case.
Becasue of Milley’s interest in getting confirmed by the Senate as chief of staff, he should not be allowed to continue with Bergdahl’s case, Fidell wrote.
A reversal of any sanctions against Bergdahl because of a conflict of interest on Milley’s part could be costly and time-consuming, he wrote.
“A reversal on the fundamental ground asserted in this writ appeal petition would be enormously wasteful of taxpayer resources, not to mention subjecting a soldier who has already suffered nearly five years in mortal danger in enemy hands to yet further stress as well as further delay in attempting to return to a normal life,” Fidell wrote.
Dan Conway, a New Hampshire lawyer who represented Army Pfc. Andrew Holmes, the Boisean who pleaded guilty in the 2010 Afghan kill team case for shooting an unarmed boy to death, said Bergdahl’s legal team should be careful.
“My view on motions to disqualify is that if you are going to take a shot at the king, you'd better make sure you take him out. If you don't, you're stuck with the general you just said was biased,” Conway said. “I think the suggestion of personal interest is speculative at best.”