- The Washington Times - Thursday, March 26, 2015

Sgt. Bowe Bergdahl’s time as a Taliban prisoner of war and questions about his mental state when he left his post in Afghanistan in 2009 could lead to a lesser sentence than the precedent set by previous desertion cases, military legal experts said.

Last month, Marine Corps Cpl. Wassef Hassoun was sentenced to two years confinement for desertion, in addition to reduced rank, loss of pay and a dishonorable discharge after disappearing from his base in Iraq 10 years ago. During his disappearance, Hassoun claimed he was briefly a prisoner in a Lebanese jail, said Daniel Conway, a former Marine and lawyer.

The act may have been part of a hoax to make U.S. officials think he was captured by terrorists instead of deserting his post. After going missing for a few weeks, CNN reported Hassoun had contacted his family in Utah and Lebanon from the U.S. Embassy in Beirut asking to be picked up, and a day later the U.S. Embassy in Beirut confirmed Hassoun had indeed arrived there and was in good health.

Mr. Conway said this case could provide a benchmark for how the military justice system may handle Sgt. Bergdahl’s charges.

But unlike Hassoun, Sgt. Bergdahl was exchanged for five Taliban members held at Guantanamo Bay and President Obama celebrated the release in the Rose Garden with the soldier’s parents.

“That [Hassoun] sentence, from what I can tell, was exactly in line with the historical precedence of cases where the service member left from a deployed combat unit,” Mr. Conway said. “I think the Hassoun case very clearly sets the market value if you will. But this case has a different emotional component because people perceive that we’ve paid a steep price for his return.”

SEE ALSO: Bowe Bergdahl describes Taliban captivity for first time after desertion charge

The Army charged Sgt. Bergdahl with desertion and misbehavior before the enemy on Wednesday after a lengthy investigation into his disappearance from his post in 2009. He returned home in May after five years as a Taliban captive, saying Wednesday night he was tortured through means such as being beaten with copper wire, kept in isolation and locked in a cage.

Greg Rinckey, a D.C. law firm partner and former Army judge advocate general, said Sgt. Bergdahl’s defense will likely use his five years in captivity to appeal to a jury or judge, arguing that giving him jail time on top of spending five years as a prisoner of war would be too harsh.

Mr. Rinckey also predicted the defense would call Sgt. Bergdahl’s mental health into question and try to make the case that he was not in a sound state of mind when he left his post, marking a distinction from the case of Hassoun.

“His [Sgt. Bergdahl‘s] behavior was very odd. Most people don’t throw down their equipment and just walk out into mountains of Afghanistan and join the Taliban,” he said. “Something is not right with this guy.”

Because of these mitigating factors, Mr. Rinckey said he expected Sgt. Bergdahl would face a dishonorable discharge but no jail time if convicted.

Historically, the Army has declined to prosecute the vast majority of deserters, Mr. Rinckey said, instead choosing to just discharge the soldier. Between 2006 and 2009, however, the Army became more serious about prosecuting deserters on deployments to deter those who were on their second, third or fourth tour of duty and “looking for a way out,” Mr. Rinckey said.

Sgt. Bergdahl is awaiting an Article 32 preliminary hearing at Fort Sam Houston, Texas. If an investigating officer recommends the case proceed to a court martial, some worry that a feeling among service members that American lives were lost attempting to rescue a deserter could make it difficult to find an impartial jury of his peers.

“There are many in the ranks, they’re angry at the way the case has proceeded. So the jury pool, it may be difficult to find a jury of his peers that doesn’t harbor any resentment,” Mr. Conway said.

Eugene Fidell, Sgt. Bergdahl’s lawyer, said he too was worried about being able to find impartial jury members because of the negative media storm that has surrounded the case for almost a year.

“The case has been tangled up in some people’s views of the current president of the United States and various other controversies, over which Sgt. Bergdahl has had absolutely no control or influence,” Mr. Fidell told PBS “Newshour.”

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