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
JAG:
For the love of Pete will you stop trying Bergdhal in your own mind and let him have a trial?
We have a soldier who HEARD a radio transmission who said it was someone looking for the Taliban. That alone warrants an investigation.
In this case, WikiLeaks is NOT an investigation or a TRIAL of Bergdhal.
You want a trial for Gitmo prisoners but not for Bergdhal.
Why NOT investigate him?
JAG: The Pentagon deemed them dangerous. Congress deemed them dangerous. The Intel Community deemed them dangerous.
I have no idea what security measures were taken with them, or why.
Why are you so determined to not believe the Pentagon and the Intelligence Community and a PHOTO OF ONE OF THEM WITH HUMAN HEADS? Seriously? Do you need anything else to know someone is dangerous besides him grinning next to beheaded human beings? Because that would pretty much do it for me.
Karen S
Yes, JAG, Bergdhal was not the only soldier in the history of our nation to go AWOL. Happens sometimes. And sometimes a soldier ships his things home and rants about being ashamed to be an American, goes AWOL in an apparently planned decision, and then you hear on the radio that some American is walking around asking where the Taliban is.
Hence the need for a court martial.
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Karen….
in NO WAY was he asking where the Taliban were……
I read the Wikileaks Transmission…. and I saw the one on Wiki….
NOT on a left or Right wing site…..
YOU have not seen the correct transcript of that transmission…..
PLEASE read this…….
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************this is the actual transcript…. 12:12 zulu….
1012Z, LLVI receives traffic that an American Soldier with a camera is looking for someone who speaks English.
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That says NOTHING about him looking for Taliban…
Just that he is looking for somebody who speaks english….
He LIKED Afghanis….
Looking for somebody who speaks english is not
an offense and not that strange when you are in a country where you don’t know the language……
It does NOT even come close to suggesting that he was looking for
Taliban……
They said he is looking for somebody who speaks english….
That could be for a number of reasons……..
Looking for a toilet… Looking for directions because he was tired around and was lost……
Looking for somebody with a phone….
Just wanting to talk to somebody……..
there are a LOT of reasons he would be looking for somebody who speaks english………..
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******Transcript…. 13:09 Z
At 1309Z, FF receive intelligence that a U.S. soldier has been captured.
—————————-
Intelligence came from a cell phone call in the area from Taliban….
again… nothing about him looking for Taliban…
Just that the report says that he was captured…..
———————————————–
************Transcript……
UPDATE: 01 0234z LLVI TRAFFIC REPORT:
163.2125/0227Z/42SVB4076446756 0.47KM X 0.16KM AZ 95.8/1-
I SWEAR THAT I HAVE NOT HEARD ANYTHING YET. WHAT HAPPENED. IS THAT TRUE THAT THEY CAPTURED AN AMERICAN GUY?
2- YES THEY DID. HE IS ALIVE. THERE IS NO WHERE HE CAN GO (LOL)
1- IS HE STILL ALIVE? 2- YES HE IS ALIVE. BUT I DONT HAVE THE WHOLE STORY. DONT KNOW IF THEY WERE FIGHTING. ALL I KNOW IF THEY WERE FIGHTIING.
ALL I KNOW THAT THEY CAPTURE HIM ALIVE AND THEY ARE WITH HIM RIGHT NOW.
UPDATE: 0237z LLVI TRAFFIC FROM FIELD TEAM: Freq-168.65 LOB-135 SS-26
UIM SAYS “CUT THE HEAD OFF”
.
.
.
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***************** Transcript……..
1- W ARE READY FOR THEM.
2- ALL THE NUMBERS ARE MESS IT. WE ARE WWAITING FOR THEM.
1- LOL THEY KNOW WHERE HE IS BUT THEY KEEP GOING TO WRONG AREA.
2- OK SET UP THE WORK FOR THEM.
1- YES WE HAVE A LOT OF IED ON THE ROAD.
2- GOD WILLING WE WILL DO IT.
“”””” “1- WE WERE ATTACKING THE POST HE WAS SITTING TAKING EXPLETIVE…. HE HAD NO GUN WITH HIM…… HE WAS TAKING EXPLETIVE, HE HAS NOT CLEANED HIS BUTT YET.”””””””
2- WHAT SHEAM FOR THEM.
1- I DONT THINK HE W
2-YES LOOK THEY HAVE ALL AMERICANS, ANA HELICOPTERS THE PLANES ARE LOOKING FOR HIM.
1- I THINK HE IS BIG SHOT THAT WHY THEY ARE LOOKING FOR HIM.
3-CAN YOU GUYS MAKE A VIDEO OF HIM AND ANNOUNCE IT ALL OVER AFGHANISTAN THAT WE HAVE ONE OF THE AMERICANS.
1- WE ALREADY HAVE A VIDEO OF HIM.
—————————–
Sources say he was found on a makeshift latrine….
he had been going to the toilet when he was captured……
…
————————–
*********************Transcript……
UPDATE: 1820z BLACKFOOT TOC REPORTS THE ANP CDR AT MEST
OP RECEIVED A ICOM CALL FROM TALIBAN STATING THAT THEY WANT TO TRADE 15 TALIBAN FOR THE AMERICAN. TALIBAN WILL CALL BACK IN 10 MINUTES. FREQ 156.288
UPDATE: 1933z STOWE 6 OF THE ETT REPORTS THAT SOLDIER MAY BE BEING HELD NEAR SHIN CHA VILLAGE WHERE A WHITE STATION WAGON WAS SEEN TRAVELING WITH 2 ANP TRUCKS. THE LISCENSE PLATE NUMBER IS 7534
UPDATE: 2018z PRT HAS NSTR AT THE TENTS VIC VB 447 423
UPDATE: 2310 373rd HAS INFORMATION THAT RADIO TRAFFIC AND VEH DESCRIPTION MATCHES PREVIOUS DESCRIPTIONS GIVEN. THE HAVE AN OBJECTIVE GRID OF VB 55106 42935
UPDATE: 2335z WHEELS UP SHR FOR 373rd ON OBJECTIVE
———————————-
**********************Transcript…..
UPDATE: 0708z GREONIMO 3
REPORTS HAV EJUST FINISHED WITH THE KLE WITH 2 X ELDERS FROM MEST AND THE MEST ANP COMMANDER.THE ELDERS WERE ASKED BY THE TALIBAN TO A TRADE BETWEEN THE U.S. AND TALIBAN. THE TALIBAN TREMS ARE 15 OF THEIR TALIBAN BROTHERS IN U.S. JAIL AND SOME MONEY IN EXCHANGE FOR PVT BERGDAHL. THE ELDERS ASSURED ME THAT PVT BERGDAHL IS ALIVE AND THAT HE IN NOT BEING HARMED.
THE ELDERS ARE GOING TO TO HAVE ANOTHER MEETING WITH THEMSELVES TO DISCUSS HELPING US THIS AFTERNOON. THEY REQUESTED TO HAVE ANOTHER MEETING WITH ME THE SAME TIME TOMORROW. T
HE MEST ANP COMMANDER IS ALSO WILLING TO HELP IN EVERY WAY HE CAN; EVEN TO THE EXTENT OF REQUESTING ASSESTS/MONEY FROM DAWLAT KHAN TO AID THE MEST ELDERS TO HAVE RESOURCES (CAR, FUEL, ARM TO DEFEND THEMSELVES) FACILITATING MEETING WITH THE TALIBAN.
THE ELDERS ALSO ASSURE THAT THEY WILL DO EVERYTHING THEY CAN TO TAKE POSSESSION OF PVT BERGDAHL. THEY SAID THAT THEY WILL APPEAL TO THE TALIBAN BY SAYING THAT THEY ARE WHITE BEARDED MEN AS ELDERS. DURING OUR MEETING, THEY WANTED FOR ME TO TALK TO PVT BERGDAHL VIA ICOM TO ENSURE THAT HE IS DOING OKAY. TRIED TO GET COMMS WITH NO LUCK.
————————————————————–
************** Transcript…..
UPDATE: 1248z SPOT REPORT MISSING US SOLDIER WAS LAST SEEN IN A VILLAGE AT GRID LOCATION VB 611 818;
A BAG WAS COVERING HIS HEAD AND HE WAS WEARING DARK KHAKI APPAREL. HE WAS BEING TRANSPORTED IN A BLACK TOYOTA CORROLLA WHICH IN ADDITION WAS BEING ESCORTED BY 3-5 MOTORCYCLES.
—————————————————————–
http://wikileaks.org/afg/event/2009/06/AFG20090630n1790.html
There is NOTHING in this transmission that even comes close to suggesting that he was seeking the Taliban……
was he stupid for leaving his base??????
YES…..
However…..
That is a bad enough offense and a person has to be missing for 30 days to be considered a deserter…..
when he was captured he was only AWOL…. and
from what I have seen, I have reason to believe that he would have come back on his own had he not been
captured……..
what he did was foolish… BUT, in no way does any of this suggest that he
was looking for the Taliban…..
There is NO NEED to embellish and make up rumors
as to what he did….. Yet, people are passing around rumors they heard
as the truth….. and that is terribly unfair to him…..
Stating that Gitmo prisoners should have a court trial rather than being held indefinitely by the military is a separate, but worthy, discussion.
On the con side, if you capture a terrorist on foreign soil and you know, for example, that he is part of a plot to blow up a major city in the US within 24 hours, do you let him lawyer up and keep silent, or do you let the military interrogate him? On the other hand, can we keep people forever without charging them? There is a debate to be had. But whether they have a trial or not is a separate issue from whether they need to be released. Did I mention the pile of human heads?
SWM:
Um . . . no . . . we don’t have to release all the terrorists in Gitmo, even if we close it.
Congress voted almost unanimously to invade Afghanistan. Saddam refused to allow UN inspectors as required, was loudly claiming he had nukes and was going to blow up the West, and used chemical WMD against his own people, repeatedly. The intel was bad on how far along he was in his nuclear program, but he did have chemical WMD. And if he won’t let in inspectors, what are we supposed to do, sit on our hands and pray he’s bluffing?
They used power drills to torture thousands of people in the Red Room. Is that the guy you want to hope is lying when he says he’s going to kill us?
Bergdhal is NOT BUSH’s FAULT.
JAG:
My reference to Nazis was in regards to the status of the Taliban. There is debate over whether negotiating with the Taliban is negotiating with a foreign government or with terrorists. I said that we ousted the Taliban 12 years ago and installed a new government. Most of the civilized world considers them terrorists. They poison school girls, and they have not controlled the country in over a decade. For those who consider negotiating with them to be dealing with a foreign government, how long after they lost their government will they hold that title? How long after WWII were pockets of holdout Nazis considered “a foreign government?” Are Neo Nazis terrorists or a foreign government?
I marveled @ those who were cultist following their guys Clinton and W. But, the Obama cultists have taken it to an entirely new level. Again, I suggest the non drowsy Dramamine. You might want to consider those patches. they give you dry mouth like you read about but it’s going to get so rough you probably won’t care about the side effects. You’ll need an RX for the patch. I bet Obama is smoking, chewing Nicorette and using the nicotine patch. I don’t think you can use both patches.
JAG:
“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…..”
This is not about “making Bergdhal look bad.” This is about the evidence we know so far, which IS bad.
Is it unfair to investigate or try Bergdhal simply because it was Obama who freed him?
Do you think it is a good idea to free a man who posed with human heads? Or do you think that it warrants criticism? Do you think it is unfair to criticize an uneven trade simply because Obama did it? What about lying about Benghazi? Is it unfair to take issue with being lied to simply because Hillary and Obama were involved?
You do not libel garbage when you say it stinks.
Here is a novel idea. How about if you address the sincere concerns voiced here about Bergdhal – namely that the trade was uneven, we let go a Hannibal Lector type, and he should have a fair trial where he can answer the evidence.
Karen….
Did you say something about Nazi’s on this thread up post????
There are a lot of posts, so I just figures I would ask you straight out….
🙂
SWM…. YOU are right…. I said the same thing on another forum last week….
that is EXACTLY what this is…..
Unfortunately….. It could get this poor kid killed….
I’ll check back in half an hour.
How long do people think we can keep these prisoners in detention without CHARGING them with something? Forever? Is that the American way now?
Nurse Jackie is on SWM. Work on that perfect cheer.
SWM, yup, and after this what will be next? They, the rightists were for his release before they were against it. Hypocrisy on steroids.
This is the revised birther movement. It’s partisans politics at its best.
Annie, BERGDAHL is the new BENGHAZI!!!!!!!!!!!!! Rough road for whom, nick, Bergdahl? I hope not as he has been through enough.
Yeah…. Those guys were DANGEROUS!!!!
from Annie’s article…..
“The five came from the lower-security Camp 6, a communal lockup, so their absence was noted by some of their fellow detainees.”
————–
why were the WORST HUMANS since Hitler in a LOW Security camp????
We got the Obama Gurls. How about being like the Spartans and come up w/ “the perfect cheer,” SWM and JAG
*The five could not have been prosecuted.*
You’ll need to keep juicin’ to keep those rationalizations going, it is going to be a rough road.
http://www.usatoday.com/story/news/nation/2014/06/15/guantanamo-bay-detainees-world-cup/10551735/
The Chief Prosecuter at Gitmo says trial for five traded Taliban Could NOT have been successfully prosecuted.
Whoa!! Rationalization on steroids.