Sgt. Bergdahl to the Firing Squad?
Military law experts discuss possible desertion charges against recovered Taliban prisoner.
Sgt. Bowe Bergdahl, right, seen in a December 2009 Taliban propaganda video, was released Saturday. His father Bob Bergdahl, left, actively campaigned for his release.
Bowe Bergdahl, the U.S. Army sergeant released from Taliban custody Saturday in exchange for five of the fanatical Islamist group’s leaders held at Guantánamo Bay, may find himself in captivity again – this time in an American military prison.
Bergdahl, now 28, left or was taken from his base in Afghanistan in June 2009 after sending his parents an email saying “ life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong. … I am ashamed to even be [A]merican,” Rolling Stone reported in 2012.
He was reportedly traumatized by seeing an Afghan child crushed by an MRAP armored vehicle and told his parents his battalion commander was a “conceited old fool” and his peers were “the army of liars, backstabbers, fools, and bullies.” He shipped a uniform and books to his parents.
Tales from Bergdahls’ compatriots suggest internal fury about his vanishing, which some believe was a deliberate act that led to the deaths of other soldiers. Fellow battalion member Nathan Bethea wrote in The Daily Beast as many as eight U.S. deaths may have been related to the ensuing search.
A former senior military official told The New York Times Monday he left behind a note explaining he was leaving. Former members of Bergdahl’s 30-member company told the Times and The Daily Mail he left his weapon and body armor, and had mailed home his laptop computer.
U.S. Joint Chiefs Chairman Gen. Martin Dempsey told The Associated Press on Tuesday “it’s premature” to say whether or not Bergdahl would face charges.
Several military law experts tell U.S. News it’s possible, albeit not necessarily likely, that Bergdahl will face charges.
Lisa Schenck, a former military attorney and judge, says it’s likely an investigation was conducted after his disappearance and possible that a charge sheet listing alleged crimes may already be prepared.
The AP reports a 2010 Pentagon investigation found “incontrovertible” evidence Bergdahl voluntarily left base.
Schenck, now a professor at the George Washington University Law School, says the first step in military criminal cases comes when a relatively low-level company commander submits an investigative report to their battalion commander recommending charges.
As the severity of punishment associated with charges increases, higher-level officers must approve prosecution, Schenck says. The secretary of defense cannot decide whether or not charges should be filed, but can raise the decision-making level.
The penalty for desertion in times of war can be death, but such severe penalties require pre-court martial approval from a relatively high-level officer.
“Death is still a lawful sentence for desertion in a time of war, I’m not suggesting that’s not in the realm of possibilities for a case like this … there could be significant punishment, significant confinement,” says Victor Hansen, a former military prosecutor and defense attorney who now teaches at the New England School of Law.
The last soldier to be killed for desertion, Eddie Slovik, was tied to a post and shot in 1945, 69 years ago and about 80 years after the second most recent desertion execution. The military hasn't executed one of its members for any other offense since the early 1960s.
There are two kinds of desertion: intending to permanently remain away and quitting your unit to avoid hazardous duty. Schenck says based on media reports regarding his disappearance it’s possible Bergdahl could be charged with both, and she notes commanders often want to make an example of alleged deserters.
If charges are not prepared, the possible case would be in the hands of the unit Bergdahl is assigned to following his release – either the present-day commander of his former unit, who is likely different, or a separate unit’s commander.
But intent to stay away must be proven, and Schenck says Bergdahl’s captivity and his limited time in the military before leaving lead her to believe he will probably avoid a court martial, even if intent can be proven. “That doesn’t mean he’s going to get an honorable discharge,” she says.
Hansen says intent may be impossible to prove with fading memories and the fact that the Taliban presumably held Bergdahl against his will.
“The buzz everyone’s talking about is desertion, that he’s a deserter and can be charged with desertion,” he says, “which is potentially true. … It’s not impossible, it certainly could be a charge.”
Hansen says he has defended several alleged deserters and prosecuted several others – and notes there needs to be solid proof of intent.
“Unless [a written confession] says something that direct, anything short of that is going to be circumstantial evidence,” he says. “I’m not saying it's impossible to prove desertion, it can be proved, but … let’s say he says, ‘Ya, I was disgusted for a while and was going to leave for the night, but then I was captured by the Taliban.’”
Hansen also doubts there’s an appetite for a trial.
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“Since these pronouncements have been made, and the president has said he’s a prisoner of war and all that stuff, the subtle message here – or maybe not so subtle message – is that we don’t want anything to happen to this guy,” he says. “But Secretary Hagel cannot just reach down himself and take it.”
Richard Rosen, a former commandant of the U.S. Army’s Judge Advocate General's School, says there may be a consensus among officers that Bergdahl has been punished enough by the Taliban. “I don’t know that it’s supposed to [influence charging decisions], but I think it will,” he says.
“If he walked away with the intent not to return to his unit or to avoid some hazardous duty, that’s clearly desertion. If he was just a straggler or got lost accidentally, maybe it’s dereliction of duty, which isn’t that serious and I doubt he would be charged with that,” Rosen says.
“Of course, writing home and expressing disgruntlement about the army is not a crime,” adds Rosen, a professor at the Texas Tech University School of Law. “I think every service member gripes – at least that's what my father told me, I guess I did too – and that doesn’t violate the law, but if that goes to show he intentionally left his unit with the intent to stay away, that’s desertion.”
Parents of U.S. Army Sgt. Bowe Bergdahl, Jani Bergdahl, left, and Bob Bergdahl, turn to President Barack Obama after he spoke in the Rose Garden of the White House in Washington, Saturday, May 31, 2014, after the announcement that Bowe Bergdahl had been released from captivity.
Rosen believes prosecutors would not seek the death penalty if Bergdahl is charged with desertion.
“He most likely would be tried as noncapital [offender] and the maximum punishment is five years, a dishonorable discharge and forfeiture of pay,” he says.
President Barack Obama announced Bergdahl’s release Saturday in the Rose Garden, saying “our top priority is making sure that Bowe gets the care and support that he needs and that he can be reunited with his family as soon as possible.”
Addressing a question about whether he might be disciplined, Secretary of Defense Chuck Hagel said, “This is a guy who probably went through hell for the last five years, and let’s focus on getting him well.”
White House National Security Advisor Susan Rice went a step further and declared Sunday, “He served the United States with honor and distinction.”
The Obama administration admittedly ignored a law that requires Congress be notified 30 days before Guantánamo Bay detainees are transferred.
Government officials are now at risk of exerting unlawful command influence over the Bergdahl case, according to a current military judge who asked not to be identified.
Unlawful command influence is “any attempt by a very senior government official or anyone senior to that officer who has to make the decision on whether or not to send the case to trial or to try to influence that decision one way or another,“ the judge says. “The president of the United States could theoretically be guilty of unlawful command influence if in a public statement he said this man is clearly a deserter.”
Rosen disagrees that statements beneficial to Bergdahl would amount to unlawful influence, noting the term is mostly used to describe conduct that harms defendants. The president can also pardon Bergdahl at any time, he notes.