- The Washington Times - Wednesday, March 25, 2015

The Army charged Sgt. Bowe Bergdahl with desertion Wednesday for abandoning his post in Afghanistan and for misbehavior before the enemy that endangered his unit, kicking off a legal process that his brothers-in-arms demanded, rekindling the debate over the Obama administration’s swapping five top Taliban terrorists, and prompting the sergeant himself to say the Taliban had tortured him.

Several legal analysts predicted that Sgt. Bergdahl, 28, who faces confinement for life if convicted, will receive a more lenient sentence in a plea deal to avoid a drawn-out trial that just provides more bad publicity for the Army after a year of media scrutiny on the conditions around Sgt. Bergdahl’s disappearance in 2009.

“This guy is an embarrassment to the Army, the Army just wants him gone and he certainly wants to be gone,” said Gary Solis, a former Marine Corps judge advocate general and military judge who is now an adjunct professor at Georgetown University and George Washington University. “They may well make a deal.”

It’s unclear whether Sgt. Bergdahl will plead guilty to the charges.
“We’ll be responding in due course,” Eugene Fidell, Sgt. Bergdahl’s attorney, told The Washington Times.

But in a statement released to multiple media outlets through his attorney Wednesday evening, Sgt. Bergdahl described his five years in captivity publicly for the first time, claiming beatings, death threats and isolation at the hands of Islamist terrorists.

The torture described includes being chained spread-eagle to a bed and beaten with a copper cable. Sgt. Bergdahl said he was kept in total isolation for the whole five years and had no sense of time, and endured periods of total darkness and total light.

“After the first year they put me inside a cage,” Sgt. Bergdahl said. “In there, my hands were also handcuffed in front of me, being taken off only on the few times I would wash or change clothes, which came more often than in the first year when I would go 3 or 4 months without washing or changing clothes.”

Sgt. Bergdahl said in the statement that he tried to escape approximately 12 times during his five years in captivity.

The charges and the torture claims also reignited a furious debate about Sgt. Bergdahl himself — whether he was a kidnap victim or a deserter, an issue that has raged for years, even before the Taliban prisoner swap.

One of those in Sgt. Bergdahl’s platoon, Cody Full, 26, of Houston, said his ex-comrade should be stripped of all his pay and benefits and be dishonorably discharged.

“It’s not fair for guys that served honorably and didn’t desert, that go to college on the GI Bill or get their retirement and other benefits, for them to get it and him to get it as well,” said Mr. Full, who is no longer in the military.

He also said Sgt. Bergdahl should serve a lengthy sentence to send a message to anyone who considers deserting.

“The military’s obviously a very rough job. … But everybody else stayed with the oath and did what they signed up to do,” he said. “And as a result of that, some didn’t get to come home.”

According to a 2012 article in Rolling Stone magazine, Sgt. Bergdahl had become disillusioned with the Army and America while serving in Afghanistan, and told his father in an email that “The horror that is [A]merica is disgusting.” Reporter Michael Hastings wrote that Sgt. Bergdahl “decided to walk away.”

Sgt. Bergdahl left his post in Afghanistan on June 30, 2009, and was taken as a prisoner by the Taliban. He was held for five years by members of the Haqqani network, an insurgent group tied to the Taliban that operates in Pakistan and Afghanistan.

He returned home in May in a swap for five high-risk Guantanamo Bay detainees. The deal drew criticism from both sides of the aisle on Capitol Hill because of the national security risk of releasing the prisoners and because the administration didn’t follow a law to notify members of Congress about the release.

At least one of the five detainees in the prisoner exchange has tried to return to terrorism despite conditions placed on their release that prohibited them from leaving Qatar for one year. That one-year period ends in May.

The Obama administration stood by the swap Wednesday.

“Was it worth it? Absolutely. We have a commitment to our men and women serving overseas, or in our military, defending our national security every day, that we will do everything we can to bring them home, and that’s what we did in this case,” State Department spokeswoman Jen Psaki said in an interview on Fox News.

House Speaker John A. Boehner, Ohio Republican, said the swap put the U.S. at risk because the nation’s record of not negotiating with terrorists or paying ransoms is compromised.

“Every American is innocent until proven guilty, and we all wanted to bring Sgt. Bergdahl home,” Mr. Boehner said. “But my chief concern remains President Obama’s decision to release five hardened terrorists, with no guarantees that they won’t return to the battlefield. I believe it made Americans less safe.”

Others in Congress also reacted to the news of Sgt. Bergdahl’s charges by criticizing the prisoner swap, also using it to raise their issues with the administration over its broader desire to close — or, failing that, to empty — the Guantanamo Bay military prison. Mr. Obama recently said his greatest regret as president wasn’t unilaterally closing it his first week in office.

“President Obama endangered our national security and broke the law when he chose to negotiate with terrorists and release hardened enemy combatants from Guantanamo Bay in exchange for Sgt. Bergdahl — who many believed at the time was a deserter,” said Rep. Michael McCaul, Texas Republican and chairman of the House Homeland Security Committee.

Rep. Ed Royce, California Republican and chairman of the House Foreign Affairs Committee, noted that the movement restrictions on the freed Taliban are nearly expired. If Sgt. Bergdahl is convicted, it would mean the U.S. has essentially freed five Taliban terrorists for nothing more than the right to imprison a disgraced deserter.

“Those five — some of the worst of the worst — will be free in a matter of weeks,” he said. “The dangerous deal the White House cut has real consequences for the safety of Americans.”

When asked about the charges in the daily briefing, White House press secretary Josh Ernest referred questions to the Pentagon.

Sgt. Bergdahl was charged with one count of desertion with intent to shirk important or hazardous duty and one count of misbehavior before the enemy by endangering the safety of a command, unit or place, Col. Daniel J.W. King, chief of public affairs at U.S. Army Forces Command, said in a press conference at Fort Bragg, N.C.

The case will now proceed to an Article 32 preliminary hearing, similar to a civilian grand jury, at Fort Sam Houston in Texas. A date for the hearing has not been set, Col. King said.

Article 32 hearings typically last a couple of days and are up to the decision of just a military judge, not a jury, said Steve Vladek, a professor of law at American University.

If the Article 32 finds enough evidence in the government’s case against Sgt. Bergdahl, he could face a military trial, known as a court-martial.

The charge of desertion carries a maximum punishment of a dishonorable discharge, reduction in rank to private, total forfeiture of all pay and allowances and five years of confinement. The misbehavior before the enemy charge carries similar penalties, but also could result in confinement for life, Col. King said.

Mr. Vladek said it is too early to predict what sort of sentence Sgt. Bergdahl could receive if convicted, noting that military juries have a lot of control over handing out sentences in courts-martial.

“We have no idea yet of what kind of defense, if any, he will mount and whether his defense is going to be that he didn’t actually do it or there are mitigating factors,” he said. “I think the key point is that this is a very, very early stage in what promises to be a rather drawn-out proceeding.”

Sgt. Bergdahl could receive credit for time served for the five years he was held as a prisoner of war.

After Sgt. Bergdahl’s return home, some questioned the suspicious conditions around his disappearance and suggested that he had deserted his post before being taken captive, launching the Army’s investigation in June.

Other reports noted that members of the military died and several more were wounded during missions to rescue Sgt. Bergdahl, when it was believed that he had wandered off from his post.

Mr. Solis warned that this would be difficult to prove in court and likely would not influence the legal proceedings.

“How do you prove he wouldn’t have been killed anyways?” he said. “It’s too subjective an assertion for a prosecutor to try and prove to the court.”
The Army declined to reveal any details of its investigation because of ongoing legal proceedings, Col. King said.

After a lengthy investigation that included interviewing unit members and commanders and meetings with Sgt. Bergdahl and his attorney, the case was referred to Gen. Mark Milley, who had a broad range of legal options.

Sgt. Bergdahl also could have faced more serious desertion charges, though the charge that was filed does not require prosecutors to prove that he had no intention of returning to his unit.

It was unlikely that prosecutors would have sought a desertion charge that carried a possible death penalty after American lives and Taliban prisoners were exchanged to get Sgt. Bergdahl back, said Jeffrey K. Walker, a St. John’s University law professor, retired Air Force officer and former military lawyer.

Still, the military could have a tough case to make, said former Army lawyer Greg Rinckey.

“It’s tough to prove beyond a reasonable doubt, especially if you have someone that’s been gone for five years and potentially may have some mental health issues at the time that the defense is going to bring up,” Mr. Rinckey said.

The misbehavior charge is rarely seen in military cases, typically reserved for shameful or cowardly conduct, said Daniel Conway, a military defense lawyer and the author of a forthcoming book on military crimes.

Mr. Conway said he wouldn’t expect the Army to seek much prison time for Sgt. Bergdahl because of his time as a Taliban captive, but officials needed to prosecute the case because a conviction means Sgt. Bergdahl cannot collect special compensation as a prisoner of war.

“He did spend X number of years as a prisoner of the Taliban — that certainly mitigates the need for him to be locked up,” Mr. Conway said. “But as a political matter, I don’t think we can stomach the possibility that he deserted his post and could receive $300,000 in back pay for it.”

In the immediate term, there was considerable political finger-pointing, as conservatives circulated pictures Wednesday of Mr. Obama hosting Sgt. Bergdahl’s parents at the White House.

When the Taliban swap was made last year, criticism from conservatives prompted Obama administration members and other Democrats to charge that the attacks were nothing but politics and, to that end, praised Sgt. Bergdahl as a hero. Those words were widely circulated on social networks Wednesday in response to the desertion and misconduct charges.

National Security Adviser Susan E. Rice had suggested that Sgt. Bergdahl was a hero. She called him “an American prisoner of war captured on the battlefield” and a man who had served with “honor and distinction.”

Donna Brazile, a Democratic analyst and Al Gore’s 2000 presidential campaign manager, tweeted in June that “a Republican PR firm has been publicizing accounts that Bergdahl might have gone AWOL just to make the President look bad.”

She dismissed those words being quoted to her Wednesday, telling a conservative tweeter to “go find your joy.”

⦁ This article is based in part on wire service reports.

Copyright © 2018 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times is switching its third-party commenting system from Disqus to Spot.IM. You will need to either create an account with Spot.im or if you wish to use your Disqus account look under the Conversation for the link "Have a Disqus Account?". Please read our Comment Policy before commenting.

 

Click to Read More

Click to Hide