Bergdahl Judge to Rule on Proof of Soldiers’ Injuries

By Erik De La Garza

(CN) – A military judge on Tuesday told prosecutors that evidence of two U.S. soldiers’ injuries during the search for Army Sgt. Bowe Bergdahl could provoke unfair conclusions from jurors if allowed into the case.

Army Judge Col. Jeffery R. Nance raised tough questions for prosecutors during a second round of legal arguments this week at Fort Bragg, where they urged Nance to allow the evidence to help prove that Bergdahl’s decision to walk off his post put troops at risk.

“You’re not entitled to use that evidence if it’s unfairly prejudicial,” the judge said. “This trial becomes a trial about that operation, that mission, and not a trial about what’s on the charge sheet.”

The judge closed the roughly two-hour pretrial hearing on Tuesday without ruling, but did adjust Bergdahl’s court-martial trial date once again to April 2017.

Bergdahl, 30, was immediately captured and spent five years as a Taliban prisoner after disappearing from his combat outpost in Afghanistan in 2009. He faces up to five years for desertion and up to life in a military prison for misbehavior before the enemy, if he’s found guilty.

Prosecutors have argued that evidence of the two soldiers’ injuries should be allowed into the case to establish that Bergdahl’s disappearance put U.S. troops at risk, an element of the misbehavior before the enemy charge.

On Monday, a military officer testified that he saw one soldier shot in the head during the 2009 search for Bergdahl. He reportedly suffered a traumatic brain injury and is now in a wheelchair, while another soldier’s hand injuries from a rocket-propelled grenade required surgery.

Claims that U.S. troops were injured and even killed during the search for Bergdahl have continued to dog him since the Obama administration agreed in 2014 to swap the soldier for five Taliban detainees being held at Guantanamo Bay, a move still criticized by Republicans, including President-elect Donald Trump.

The government announced early on that it did not intend to produce evidence that any soldiers died searching for Bergdahl, who is stationed at a military base in San Antonio. The Army’s lead investigator into the case, Maj. Gen. Kenneth Dahl, concluded that no U.S. troops were killed during the search.

The next motions hearing is scheduled for Dec. 1 at Fort Bragg. The new trial date is April 18, 2017.

The Associated Press contributed to this report.

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