- The Washington Times - Thursday, March 26, 2015

The lawyer for Army Sgt. Bowe Bergdahl says an official investigation cleared the soldier of any misconduct during his five-year captivity the Taliban and Haqqani terrorist network, trying to dispel speculation that his client somehow collaborated with the enemy.

Attorney Eugene Fidell is perhaps the only person outside a tight circle of Army officials who has had any access to the investigative report by Maj. Gen. Kenneth Dahl. His report was the basis for Sgt. Bergdahl being charged this week with two criminal counts: desertion and “misbehaving before the enemy.”

Mr. Fidell obtained an executive summary of the general’s report, not the full document. Based on the summary, the attorney wrote a March 2 letter defending his client to Gen. Mark A. Milley, commander of U.S. Army Forces Command, who made the decision to charge the former captive.

There has been some media speculation that Sgt. Bergdahl somehow collaborated with the enemy.

But Mr. Fidell wrote: “There is no evidence of misbehavior of any kind while he was held captive. Nor is there any credible evidence that Sgt. Bergdahl left in order to get in touch with the Taliban.”

The “misbehaving before the enemy” count refers specifically to the soldier, on June 30, 2009, walking away from Observation Post Mest, in eastern Afghanistan’s Paktika Province. It is a violation of Article 99 of the Uniformed Code of Military Justice.

The charging document states that his action “did endanger the safety” of the post and his unit “which it was his duty to defend” and that he “wrongfully caused search and recovery operations.”

“In context of this article, ‘before’ means that the person or his unit is engaged in warfare with the opposing forces or is about to engage in warfare,” states an analysis by Joseph L. Jordan, an attorney who specializes in military law. “It is not necessary to prove that the enemy was right in front of or within sight of the accused. ‘Enemy’ refers to both civilian and military opposition forces.”

One element of Article 99 is “running away” — which refers to “any unauthorized movement away from the person’s place of duty.”

Mr. Fidell’s letter to Gen. Milley was an attempt to head off, albeit unsuccessfully, a referral for a court martial.

He wrote that Sgt. Bergdahl did not intend to stay away permanently. The Dahl report concluded, he wrote, “that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.”

The letter did not disclose those “circumstances,” but in emails sent to Sgt. Bergdahl’s parents the soldier complained about the mission in Afghanistan.

“In light of the nearly five years of harsh captivity Sgt. Bergdahl endured, the purpose of his leaving his unit, and his behavior while a prisoner, it would be unduly harsh to impose on him the lifetime stigma of a court-martial conviction or an other than honorable discharge and to deny him veterans benefits,” Mr. Fidell wrote.

Mr. Fidell also submitted an unsigned statement from Sgt. Bergdahl. The soldier said he tried to escape a dozen times. He was held in total isolation, chained to a bed for months, kept in a cage and beaten, and subsisted on noodles and rice.

“Because of sickness, weather, and little food and water, hunger and worse, dehydration my body continued a steady decline,” he said. “The lowest point coming in the winter at the end of the first year. My body weight having dropped to the point that my ribs and joints patruded [sic] clearly.”

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