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
You go, gurl, These five taliban are not the best of fellows but they were going to be released in any case, and Bergdahl needed to come home. Don’t really see anything hypocritical about that. Now if you want to say the democrats were harder on Bush than they are on Obama,so what, he DID invade these countries. Without Bush’s invasions, we would not even have these conversations.
Trust me when I say that Obama has not been at all what I was hoping for…
However…. That man has been trashed and trashed for years…
for the first 2 years it was over his BIRTH CERTIFICATE…
questioning if he was even American….. and this was on TV…..
he was trashed on the NEWS for using the wrong mustard…..
yeah… I don’t blame him for being like this anymore…..
and REALLY… if those Taliban were so bad….
WHY were we unable to try them for any crimes????
Why did they sit there for over 10 years, while not being charged with a crime?
This may not apply to many here on JT’s site….
However…. This is mostly about smearing Obama…..
If you can make Bergdahl look as bad as possible and compare him to MURDERERS…. Then it would mean that Obama should NOT have tried to save his life…..
There are countless sites that just say the most VILE, horrific things…..
and I mean VILE… Calling for his death… Heck, his parents have been getting DEATH THREATS….
Does that make YOU proud???
That is the Right Wing doing that…..
and just watch FOX news.. they are saying HORRIBLE things about his
parents… and how his father looks….
If my daughter were held captive like that…. I would be wearing a freaking BURKA if I thought that would help get her home safely…..
Yet, I have not seen anybody on the Right, say how
tacky and tasteless that was, to attack his family…..
NOPE….
Ohhh, I have seen some of you say, we will wait until there is an investigation… But, that does not keep many on the right from still passing along rumors they have heard…..
Rumors that were debunked LAST week…..
I will say this and I mean it WHOLE HEARTEDLY…..
If Bush was in office and made this trade, I would feel EXACTLY the same way about it….. because I truly believe that our CiC should have the RIGHT to negotiate a POW’s release….
The last thing I would want is for the Senate to be involved with something so sensitive….
My god, they can’t seem to do anything right and constantly flip flop on EVERYTHING….. They can’t be trusted with a VA Bill, when the VA is in need of funding and is in trouble..… much less trusting them with a POW’s life that is ON the line……..
If Bush had been in office when Benghazi happened… I would feel the exact same way about it…. YOU know why???
Democrats IN GENERAL do not politicize these types of things…..
WE do NOT POLITICIZE attacks on Embassies… we know it happens…
It will happen again…. we have embassies in dangerous countries….
You can’t protect them 100% of the time…. that is just a fact… it is sad.. But, it is the TRUTH……
We do not attack a man who has been held captive for 5 years and who spent the last 2 years in total solitary confinement, not seeing another human face for 2 years while being held captive by a bunch of thugs who love to decapitate Americans on video for sport…..
and I can tell by the response from the Right wing….
Many could care LESS what his parents are going through…..
You know how you can tell that the left is nothing like the right wing???
If we were as vile as the right, we would be digging up dirt on the guys from his unit who are trash talking him in the media…..
and I mean ALL of them…. Yet, that has yet to be done….
YOU know why his entire unit has not been trashed????
Contrary to the Right wing belief…
we VALUE humans and have compassion….
and we are Patriotic…. we know that when a Veteran comes home…
WE SUPPORT him….
we know that when an Embassy has been attacked, we stand as a COUNTRY….
WE do not use these things to score political points with our fringe……
YOU can say anything you want…. and deny this all you want…
But, had Obama been in Office on 911…. The country would have gone to war with itself…..
INSTEAD the Left STOOD behind a President we HATED with a passion….
Because when your country is attacked… that is what you do….
When Embassies were attacked under Bush… we stood as a country…
WE did not look for ways to score political points before the bodies are even cold….
This is why I LOVE being on the Left….
WE may NOT be perfect… and we are far from it….
WE do know when to stand together as a country….
That is something the right wing has lost…..
Now, I am NOT saying that EVERYBODY here is like this….
I am just saying that a LOT of people on the right are acting very disgusting…
and I have yet to see any of you on the right denounce this vile behavior……
Just go to FOX news and read the comments on the article talking about how he was in Solitary Confinement for 2 STRAIGHT years…..
yes, 2 STRAIGHT years…..
and you tell me how great your side is acting right now…
Sorry, You’re on fire, kid! Bob’s quote answers your question of 8:21p.
Thanks. So true.
KarenS, Bob’s quote @ 6:53p answers your last question.
Why are the 5 men deemed dangerous? Because of bloggers? Because of the court of public opinion? Nope. Because, “According to a 2008 Pentagon dossier on Guantanamo Bay inmates, all five men released were considered to be a high risk to launch attacks against the United States and its allies if they were liberated.”
http://www.thedailybeast.com/articles/2014/05/31/us-pays-high-price-for-last-pow-in-afghanistan.html
So I guess people here on this blog know better than the Pentagon.
It is so interesting to hear how people assume that any negotiations that were made for Bergdhal must have been above reproach.
Did people feel that way when Bush was in the Oval Office?
Bob:
Wrong is wrong, regardless of political affiliation.
JAG:
This is a common tactic by this administration. Stonewall, deny access, don’t cooperate, lie, and then complain that it’s old news. They’ve done this again and again. (Hence Holder was found in contempt before.)
1) They have delayed or denied FOIA
2) They did not clear the survivors to be interviewed by Congress until winter (over a year after the attack)
3) Hillary has refused to cooperate and testify
4) A majority of those polled want a committee to investigate, and believe Hillary was deceitful.
http://freedomoutpost.com/2013/08/sharyl-attkisson-denied-access-to-benghazi-details-photos-by-white-house-fbi/
http://townhall.com/tipsheet/guybenson/2014/05/15/fox-news-poll-benghazi-n1838282
The important thing is that we get answers, and not use the committee as a platform for monologues or political grandstanding.
4 Americans died due to gross negligence, and there was a coverup. We need to find out what happened and hold those responsible accountable. I don’t care about political points.
Chuck:
The difference between freedom fighters and rebels is who wins to write the history: True
But there IS a difference between “terrorists” and “freedom fighters.” Terrorists employ methods specifically designed to terrify their opponents, hence the name. Poisoning young girls because you disagree with educating females is not “freedom fighting” it’s terrorism. And it doesn’t matter who wins or loses. Strapping a bomb to a child and detonating it is not freedom fighting. Deliberately targeting innocent civilians is not freedom fighting. Murdering people who don’t vote how you want them to is not freedom fighting.
What freedom are they fighting for in Afghanistan? The freedom to terrorize their own people? The freedom to keep attacking the US? Is the claim that preventing them from stoning women and gays prevents them from practicing their religion? We’re not colonizing them. We tried (fruitlessly) to instill democracy and then leave. We did not take their resources or their treasure. We spent our own on this war.
And cue the bashing of Republicans and ad hominem attacks. Ignore the bipartisan opposition of Congress to trading for this guy. Unless I’ve missed it, has anyone said that releasing a guy who posed with a pile of decapitated heads was a great idea?
When the head of ISIS was released, he said, “I’ll see you in NY.”
This should work out just fine.
Honestly, are Liberals on this blog capable of calmly debating both sides of an issue? No one ever answers the valid concerns raised. It goes straight to it’s not fair, you’re an idiot who knows nothing about the ME, Republicans are horrible, Bush, etc.
I’ve repeated very reasonable points multiple times, and I have not read an answer that addresses those points. No one has explained to me why it would be reasonable NOT to investigate and court martial Bergdhal where he can answer the evidence. Or why it is unreasonable to object to an uneven exchange, or why we didn’t just buy him back.
Ad hominem attacks and red herrings are SO boring to read, I just skim over them and lose interest.
In a nutshell:
ME: Bergdhal should have a trail where all evidence will be presented. He should be investigated on whether he should get a dishonorable discharge. I want answers, because it looks bad. And what an uneven trade! And those men who were released are literally murderers! One posed with a pile of human heads!
Answer: Page after page of comments that this is grossly unfair criticism.
There have been countless investigations into Benghazi and yet, even when the Republicans came up with nothing after their investigation, the Right still screamed COVERUP….
Then there was The Fast & the Furious investigation that cleared Obama and Holder…. and we still hear about how corrupt Obama covered this up as well… so, I am going by past experience…. It does not matter what the investigation will say…. if Bergdahl is found innocent… we will be hearing about how Obama had this covered up and how this guy is a traitor for the next 3 years……
Maybe not you Karen…. But, I have no DOUBT that MANY will be…..
JAG – what we have found with the investigations into Benghazi is that the administration has been engaged in a coverup. They have been lying and spinning since day one.
Actually, JAG, the article that you referred to DID say that the soldiers who went AWOL were punished by the military.
Obviously, the severity depends on what happened in each case.
Why are you saying it will not matter what is said in an investigation, and I will scream about a cover up? That sounds really emotional and not based on anything I’ve actually said.
From the evidence released by the military, I have valid concerns about his behavior. He may or may not have diagnosable psychological issues. That certainly raises an issue with how he was able to make it into the military in the first place. His behavior points to an ability to tell right from wrong, though, when he asked his superior if it would cause problems if he took equipment with him.
Was he just completely naive, and thought he would have a Sound Of Music romp through Afghanistan, welcomed with open arms because he hated Americans? Did he think the Taliban was maligned, and were really nice guys that would like him?
Honestly, it’s hilarious how people defend Obama and Bergdhal and behave as if any criticism of either is beyond the pale of normal.
Bergdhal is not responsible for the unequal trade that freed him; Obama is. Bergdhal is not responsible for illegally going around a united Congress to make that deal; Obama is. Obama is responsible for freeing the head of ISIS, and we can turn on the news about Iraq to see how well that turned out. One of the 5 he released posed with a pile of human heads, and it’s somehow weird that anyone would possibly object to letting him go after a relatively short stay in Gitmo?
I, and others, have repeatedly said we are glad he’s home, but angry about how it went about. It was an uneven trade, releasing Hannibal Lector types of people, when we had an opportunity to just buy his release. We’ve also said he needs a trial.
I honestly have no idea what the pushback is about. Is it a great idea to release a guy who collects human heads as trophies? Is it unfair to criticize Bergdhal’s damning actions? Is it horrible to investigate him and have a court martial, where he will have the opportunity to be psychologically evaluated and explain this evidence against him?
Honestly, the intensity of the pushback is absurd and unwarranted.
Hypocrisy is the tribute vice pays to virtue. — Francois de La Rochefoucauld
The folks on the right seem to think they have the power to adjudicate the status of Bergdahl; or in the alternative, that his alleged status as a deserter bears any relevance to the issue of the Obama Administration acting unilaterally and against the law to arrange the swap.
The folks on the left seem to think that their fearless leader is above the law by virtue of his say so and that he and his supporters are not hypocrites for pointing to the signing statement for authority.
“When pressed on how the White House circumvented the law, Defense Secretary Chuck Hagel cited the signing statement.
If that sounds legally questionable to you, you agree with Democrats in the George W. Bush era—including Senator Barack Obama. Democrats raged against Bush’s use of signing statements, which they insisted was unconstitutional. Answering a questionnaire from reporter Charlie Savage, then of the Boston Globe, in 2008, Obama wrote:
Obama: “I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation …. No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.”
https://lh5.googleusercontent.com/-0hvLTC_nhE8/TXUZ2_T07cI/AAAAAAAAAEw/Kb9hdoTGIZI/s1600/know-it-all.gif
And, being a purveyor of truth, I have mentioned a couple times a detainee W released from Gitmo was part of the group who attacked the Benghazi mission. That Mohammed video must have really ticked him off. LOL!
Oh if only military experts were so savvy as internet commenters, lol. 🙄
Oh, SWM, you know the leader of ISIS was let out of a Baghdad jail a few years ago, don’t you?