Below is my column yesterday in the Chicago Tribune. It remains unclear whether Bowe Bergdahl will be charged. However, the allegations are mounting over his disappearance from his base. This column explores some interesting possible defenses and their historical context. Bergdahl returned this week to the United States, a move that will likely magnify these questions for the Administration.
The controversy over the trade of five Taliban prisoners for Army Sgt. Bowe Bergdahl continues to grow with allegations that President Barack Obama violated federal law and paid too high a price for the release. However, the biggest problem for the White House may not be the Taliban (including one released prisoner who said he wants to immediately rejoin the fight against America) but what to do with Bergdahl now that we have him back. Bergdahl is facing allegations that he not only deserted in June 2009, but may have collaborated with the enemy. If he faces a military trial, the White House could be looking at years of legal wrangling and a defense that might resemble another notorious case that began 40 years ago — that of Patty Hearst.
The facts of Bergdahl’s disappearance remain sketchy. While he previously stated that he had lagged behind a patrol and was captured, the Pentagon concluded that Bergdahl walked away from this base voluntarily. If true, that would make him vulnerable to a charge of being absent without leave. However, the allegations are far more serious. While the White House has said that Bergdahl tried to escape from his captors, various journalists are reporting that Bergdahl may have sought contact with the Taliban and may have been a collaborator, including times when he carried a weapon. One particularly serious allegation is that Bergdahl taught the Taliban how to convert a cellphone into the base of an improvised explosive device. Those charges would expose Bergdahl to charges of desertion and even treason.
What is known is that shortly before his release, Bergdahl sent his parents a uniform as well as messages that indicated his dissatisfaction with our country and the U.S. operations in Afghanistan. In one email, Bergdahl reportedly wrote his parents that “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.” He described his commander as a “conceited old fool” and his comrades as “the army of liars, backstabbers, fools and bullies.”
To make matters worse (if that is possible), members of Bergdahl’s unit insist that soldiers died looking for him — though that claim remains under investigation.
A Bergdahl trial would only magnify the political costs for the Obama administration. The best political option for the White House would be to have Bergdahl “separated” from the service for mental and physical health problems. A trial would draw obvious comparisons to a prior case like that of Marine Pfc. Robert Garwood, convicted of aiding the enemy in the Vietnam War. In Garwood’s case, there was no allegation that he left voluntarily or sought out the enemy. However, while prisoners were released in 1973, Garwood did not return to the United States until 1979 and faced allegations of collaboration, including working for the Vietnamese as a mechanic and other roles in unguarded facilities.
However, the strongest parallel may be to the trial of Hearst, heiress to the Hearst newspaper fortune. After being kidnapped in 1974 by the Symbionese Liberation Army, Hearst appeared in a tape in 1974 announcing that she had joined the SLA and assumed the name “Tania” — after the nom de guerre of Haydee Tamara Bunke Bider, a communist guerrilla and one of Che Guevara’s comrade in arms. Hearst was captured on film 12 days later, holding a M1 carbine while robbing a bank in San Francisco.
After her arrest, Hearst refused to give evidence against the SLA members but insisted that she was brainwashed. The defense fell short and Hearst was convicted of bank robbery in 1976 and sentenced to 35 years of imprisonment. President Jimmy Carter later commuted her sentence to two years, and she was eventually granted a full pardon by President Bill Clinton in 2001.
The military laws and culture make it difficult to advance a Stockholm syndrome defense where a captive identifies or bonds with his captors. The rules governing prisoners of war require them to maintain discipline and to continue to resist the enemy while in captivity. POWs are forbidden from aiding the enemy. What looks like Stockholm syndrome to the public looks like collaboration to the military.
That leaves a mental illness defense or a type of post-traumatic stress disorder defense. Bergdahl reportedly was traumatized after seeing an Afghan child run over by an armored fighting vehicle. (Notably, one account also states that Bergdahl was held in a small metal cage after trying to escape.) That could be enough as a foundation for a claim of mental diminishment, particularly when combined with grueling captivity at the hands of the Taliban. However, it is the type of claim that did not work for Garwood or Hearst, and PTSD is more of a recognized medical condition than a legal defense.
No matter how this unfolds, the Bergdahl controversy is likely to get worse for the White House before the fall election. Bergdahl may prove to be everything that Republicans wanted Benghazi to be. And they do not have to do a thing.
Jonathan Turley is a law professor at George Washington University and has handled military and national security cases as criminal defense counsel.
Chicago Tribune: June 13, 2014
SWM, As I said, CNN, actually Jake Tapper, has done a good job. But, I have given kudos to the leftist, Daily Beast, as being on top of this story from day one. They sent me to the Hastings piece the first day. They have for the most part covered this as a straight news story. The question as to whether the Taliban and al Qaeda were linked back from the late 90’s is not in dispute. The controversy is whether these 5 war criminals were involved in the 9/11 attacks. There is some evidence one was, but it is certainly not dispositive.
One of the Daily Beast reporters who seems to have good sources in the WH on this is Josh Rogin. I don’t know if you know him, but he’s pretty left. Indeed his piece in the DB dated, 6/6/14, makes the case that this was a legit deal. He relies heavily on yes man and known liar, John Brennan. But, Rogin and the WH concede these 5 were linked to al Qaeda. Rogin quotes a WH source saying, the 5 “Had EXTENSIVE ties to al Qaeda.” At this point, I don’t care to debate the point that there were ties to 9/11. I need more verification before I’ll make that assertion. But to try and make a case the leaders of the Taliban were not linked “Extensively” to al Qaeda is not something even this spinning WH is doing. That would be ludicrous and stupid. They have used more than their quota of ludicrous and stupid the past few weeks. They seem to have finally figured that out. They’ll need to really use ludicrous and stupid lies on this Lois Lerner email deal.
on 1, June 15, 2014 at 5:46 pmswarthmoremom
http://www.cnn.com/2014/05/31/us/bergdahl-transferred-guantanamo-detainees/
“They were mostly mid- to high-level officials in the Taliban regime and had been detained early in the war in Afghanistan, because of their positions within the Taliban, not because of ties to al Qaeda.”
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…….not because of ties to Al Qaeda.
SWM, Thanks for making my point. CNN has been good on this swap, not the best, but good. As you know, Hillary, Panetta, Feingold, and all Dems in the loop but Kerry were dead set against this deal in 2012, because these guys are baddest of the bad. Were you aware the current General in charge of Afghanistan was NOT EVEN TOLD, he wasn’t consulted, Obama didn’t consult w/ anyone but Rice, Kerry, etc, you know the ass kissers. But, the US General in Afghanistan learned about his horrible deal like all of us, on the news. Political and military malpractice. Now we got the Lois Lerner emails, better take some of that non drowsy Dramamine, it’s going to get really choppy.
SWM, looks like the authors of our articles don’t have a rudimentary grasp of Al Qaeda/ Taliban connections in Afghanistan. Commenters on a political blog who do not provide sources are oh so much more reliable…. I guess.
http://www.cnn.com/2014/05/31/us/bergdahl-transferred-guantanamo-detainees/“Two senior administration officials confirmed the names of the five released detainees as Khair Ulla Said Wali Khairkhwa, Mullah Mohammad Fazl, Mullah Norullah Nori, Abdul Haq Wasiq and Mohammad Nabi Omari.
They were mostly mid- to high-level officials in the Taliban regime and had been detained early in the war in Afghanistan, because of their positions within the Taliban, not because of ties to al Qaeda.
CNN profiled them two years ago, when their names first surfaced as candidates for a transfer as part of talks with the Taliban:”
http://www.columbiatribune.com/opinion/oped/media-misfired-on/article_d2e8e9ec-f358-11e3-acd4-10604b9f1ff4.html
Link to article above @5:41.
“In terms of potential threats, the release of the Taliban who were being held in Guantanamo was conditioned on the Qataris keeping eyes on them and creating a structure in which we can monitor their activities. We will be keeping eyes on them. Is there a possibility of some of them trying to return to activities that are detrimental to us? Absolutely.
The media simply take the government’s word that the five Taliban figures are international terrorists. But the Taliban are not al-Qaida. They were the theocratic government overthrown by U.S. forces. So when Taliban insurgents attack American forces, it is not terrorism but war, which the U.S government started.
There have been a few hints that the prisoners are not accurately described. A rare example is from the government’s former chief prosecutor at the American prison at Guantanamo Bay, retired Air Force Col. Morris Davis. Davis punctured the “hardest of the hard-core” narrative when he said:
“We had screened all of the detainees, and we had focused on about 75 that had the potential to be charged with a crime. When I saw the names” of those traded, he “wasn’t familiar with any of these names. … If we could have proven that they had done something wrong that we could prosecute them for, I’m confident we would have done it, and we didn’t.”
In fact, the story behind the five Taliban prisoners reflects poorly on the U.S. government’s conduct of its supposedly good war. Maybe that’s why this story gets so little attention.
Before being captured, these Taliban officers were treated as potential allies by the CIA or the U.S.-installed government of Hamid Karzai.
Anand Gopal, author of “No Good Men Among the Living: America, the Taliban, and the War Through Afghan Eyes,” writes that all five of the swapped prisoners were initially captured while trying to cut deals, and … three had been attempting to join, or had already joined, the Afghan government at the time of their arrests.
This history shows that the categories we take as rigid and unchanging, such as “terrorist,” are in fact remarkably fluid in the context of Afghan politics. Uncovering the stories of these men tells us much about Guantanamo, the Taliban and the possibility of a negotiated end to the conflict.
How did these men end up in U.S. custody?
The U.S. government offered attractive bounties to Afghans who turned alleged Taliban and al-Qaida members over to American authorities. This created a strong incentive to rat out personal enemies, rival warlords and others, many of whom had nothing to do with the Afghan insurgency or international terrorism. Many were sent to Guantanamo.
For example, Gopal writes, “Mohammad Nabi Omari, who was part of the Bergdahl exchange, was a small-time commander linked to pro-Taliban strongman Jalaluddin Haqqani in the 1990s. After 2001, he was among the many Haqqani followers who switched allegiances to the Karzai government. … [Omari] and other former Haqqani commanders began working for the CIA. … Some Afghan officials in Khost allege that Omari reaped profits from falsely accusing others of al Qaeda membership. If so, he certainly accrued enemies, and in September 2002, he, too, was accused of insurgent membership by rival warlords and politicians, despite being publicly aligned with the Karzai government.”
His next stop was Guantanamo.
“Instead of being recalcitrant terrorists bent on fighting America,” Gopal concludes, “this history indicates that all five can make pragmatic deals if the conditions are right.”
The U.S. invasion-occupation of Afghanistan was a war of choice, not necessity. American forces made it worse by indiscriminately placing a price on the head of any Afghan whom someone one else was willing to destroy.”
Chuck, Could you please retrieve my comment from raff’s thread. I would really appreciate it. Thanks, for your anticipated assistance.
Steve, Al Qaeda and the upper tier Taliban were in one big toilet. Anyone w/ a rudimentary knowledge of Afghanistan in that era understands that. Some cultists LOVE to rewrite history in order to serve their Imperial President. It’s sad. Hell, they play the race card even though Obama doesn’t. They play that card from the top, bottom of the deck, from up their sleeve and out of their buttocks.
Steve, could you post a link to the 9/11 commission to the section in which it states that these 5 were Al Qaeda? I’m not saying you’re wrong, but I’d like to see it from the report itself.
Geez, I’m thinking 5 years is more than 30 days.
Witness testimony is that Bergdahl intended to abandon his post and that he did precisely that. There is testimony that he intended to join with the enemy and immerse himself in the Afghan culture. There is no testimony that he was incapacitated, under the influence or adducted. He abandoned his post of his own volition. Once the crime was committed, no subsequent events mitigate.
There is no justification for the ineligible President to trade the entire 5-man Taliban General Staff for a soldier who abandon his post and joined the enemy.
This is a massive failure by Obama demonstrating a complete absence of negotiating or leadership skills; any skills other than those of a self-pitying, pot smoking “victim” and community organizer who enjoyed a brief stint as the affirmative active political officer for indoctrination at a liberal institution.
As the Middle East burns (with ignition in Asia and Ukraine imminent), the community-organizer-in-chief is in over his head and the Bergdahl trade for the entire Taliban General Staff proves it.
But Obama is on to greater things.
He is busy deleting Lois Lerner’s e-mails.
P.S.
Has anyone heard from Susan “My Name Is Mudd” Rice lately???
Can you say banana republic???
John, I retrieved a comment from you at 5:12.
“These 5 were Taliban, not Al Qaeda.”
It would appear that the 9/11 Commission Report says otherwise.
“A kid” walked off base with an ax and beef jerky. A seasoned solider even said so.
Case closed. It happens. It appears the UCMJ was ignored in this case; therefore it must be tossed out for all.
No investigation is needed.
Then again…………… a 15-6 Investigation was conducted in 2009.
Oddly, it’s been sealed until 2019.
I’m thinking that if said investigation supported the claims of Obama, Rice or the myriad of “FACTS” provided here by JAG it probably would have been in the NYT a week ago.
Maybe the 15-6 was emailed to Lerner and got “lost.”
Paul,
I don’t know if the word “terrorist” had even been coined at the time of the American Revolution. The Patriots would have been classified as terrorists in the current vernacular. They were “terrorists” in the sense the Congress, President, NSA, MI5, Interpol, etc, etc, would use it now. And called terrorists if they were captured today. Or “freedom fighters” depending on who was doing the defining. I realize you know all this and that was supposed to be a “gotcha;” therefore, I am really writing this for our other readers. 🙄
Chuck – at no time would the rebels or revolutionaries of the American revolution have been considered terrorists. Terror has to be part of the component strategy or tactic (I think this is Bob, Esq. meme that you cannot fight a war on a tactic). The American Revolution was fought along the lines of the 18th century warfare. That is were von Stueben comes in. He taught the Americans how to fight as 18th century soldiers, instead of poorly trained militia. It was mostly movement, counter-movement and some short battles.
JAG, I made it PERFECTLY CLEAR who I blame for the incompetent negotiations. It is ONE MAN and that man is Obama. Come on girl, straw man..really?? And, now you’re going off the rails. I know Karen well. She comes from a military family. We have discussed this extensively previously. We do not equate desertion w/ murder. Finally, Your saying the others “didn’t get caught” is a reason to excuse Bergdahl is well, let me be diplomatic and call it curious. Two guys rob a bank. One gets caught, the other does not. We cut the guy who got caught slack because the other guy got away, in the JAG Sentencing Guidelines. You really are a criminal defense attorney @ heart. And, I LOVE the way we can dissent w/ passion w/o getting nasty. That’s why we need you here more often.
Nick… this is what you said before…..
This is the only deserter of which I’m aware.
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Yeah… the other guys were able to return because they had NOT been captured by the Taliban……
JAG – there are a variety of administrative remedies available to a troop commander and the accused. Many of them are less then a court martial and are often taken because although the punishment is a blemish on the record, the court martial can end a career.
for STARTERS…. Bergdahl had NOTHING to do with the negotiation…. So, YOU can’t blame him for the exchange…..
so, REALLY one has nothing to do with the other……
and YOU just did what Karen did… YOU picked out a situation that is NOTHING like what Bergdahl did….. he did NOT gun down 16 innocent people….. Of course YOU think that him leaving at all is the same though…. even though I just proved that MANY people leave their bases and NEVER get punished as a deserter……
WHY did you refuse to point out the guy who walked away with an ax and beef jerky????
I know why, because that case is like Bergdahl… BUT, it doesn’t fit your
need to slam Obama and smear Bergdahl…..
Some people must have been a fly on the wall during negotions for Bergdahl’s release to be so sure of what occurred there. I trust that far more intelligent and informed people were sitting in those negotions and planning sessions.
Why were Republicans and conservatives criticizing Obama for not getting Bergdahl from the Taliban. Why were there right wing groups having people sign petitions to get back Bergdahl? Surely they knew about the alleged circumstances of his departure from his base. Why didnt it bother them back then that he may have been a deserter? So now Obama gets Bergdahl back and because HE did it rightists turn on him and once again call for his impeachment. The hypocrisy and double standard is so very evident. No one is being decieved here, we all know that rightists would criticize Obama for any single thing he did or would do, even of they originally were calling for it themselves. As far as who he traded for Bergdahl, those were who the Taliban demanded, obviously. These 5 were Taliban, not Al Qaeda. If Bergdahl was any one of our sons, I don’t for a minute think we would say, “don’t make the trade”.
Staff Sgt. Robert Bales pleaded guilty to killing 16 Afghan civilians in Auguat 2013. He was sentenced to life w/o parole. Being an opponent of the death penalty, I think that a righteous sentence. I hope and pray Bergdahl also receives a fair trial[I don’t see a guilty plea] and a righteous sentence.