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
Show me where I spin Paul. And on whose behalf have I been doing this spinning?
I’m really f’n curious.
Bob, Esq. I do know about lying and spinning. I recognize both. For instance, I know that you don’t lie. However, you do spin.
Maybe they will find those WMD after all……think?
My 11:19 in response to Paul’s 11:06, to be clear.
Where is your buddy when you need him Karen?
Annie – you do realize that Karen wrote her comment 11 hours ago.
Noooo, really??
Who was that guy going around calling everyone a cultist the last few days?
Karen: “Saddam … was loudly claiming he had nukes and was going to blow up the West”
“The intel was bad on how far along he was in his nuclear program, but he did have chemical WMD.”
“Saddam DID have WMD”
What the hell is wrong with you Karen?
Why do you and Paul insist on lying to yourselves and others about this issue?
http://jonathanturley.org/2014/06/13/u-s-shipping-more-weapons-and-preparing-more-military-aid-to-iraq/#comment-1180444
CENSORSHIP is un-American. I’m going to take a guess that it is unconstitutional. I’m told I’m always wrong on that one; I can’t read English.
I presume that whoever is
TAKING comments from this thread is
GETTING whatever it is he needs.
God Bless the needy.
Karen,
Would YOU please kindly point out where I said that there should be no investigation??
I suggest that you read the transcript of his capture yourself, and that is unreasonable????
hahahahahaha… 😀
Of course that is unreasonable… what was I thinking???
Karen…..
I didn’t say that it should not be looked into…..
I just think it should be equally looked into as the guy who was
going to walk to Iran….
NOT the guy who went on a rampage and killed innocent Afghani citizens…..
This story has been built up FAR MORE than need be….
and a LOT of rumors and lies are going around….
Like the rumor YOU are repeating about him looking for the Taliban….
That is an UNSUBSTANTIATED rumor…. and nothing else…….
His other Platoon mate in the video I posted above says
that he saw absolutely NO EVIDENCE that Bergdahl was looking for the Taliban….. ONLY that Bergdahl had left his Platoon….
NOTHING more…..
However….. YOU said….
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.
———————————-
I was simply pointing out that YOU ARE WRONG….
That there is proof out there via a SENSITIVE Document dump that
has the actual TRANSCRIPT of his capture and what was said….
I am pointing out that what YOU heard about him LOOKING for the Taliban is
simply WRONG….
That didn’t happen……
IN my opinion it is bad enough that he walked off base….
There is just NO NEED to embellish the story further to smear
him even more and make him into a Taliban sympathizer….
There is NOTHING to suggest that this is what he was…..
WHY the need to repeat rumors that you are not willing to investigate yourself by reading a simple transcript of the capture????
I just think that if you are going to give your opinion on the subject, it is best to get the whole story… and NOT always believe what some people say….
do a little investigating yourself…..
WE all know that people lie, embellish and make up stories… and it is NOT outside the possibility that
that one guy from his platoon is lying…..
I saw the transcript he is talking about….
and it just looks to me, and many logical people…. that the guy is
just upping his game, and embellishing his story for whatever reason…..
It happens…..
Look at what happened with Pat Tillman….
People lie…. that is just a fact…..
so, it is best to just always try to check the sources…..
I am just saying… Read the transcript YOURSELF….
and No, I never said that it should not be looked into….
Sorry, but I can’t reason with the unreasonable.
You declare there should be no investigation because a transcript you found online did not list why he was looking for someone who spoke English. With no investigation, you don’t want to find out why he was looking. You don’t want to know why an eyewitness had a slightly different account. Or why he went planned AWOL, or why he shipped his computer home.
Heck. Obama set him free so definitely do not look into anything, at all, with why Bergdhal went AWOL. And do NOT under any circumstances question the release of the 5 or any prior offers to buy his release. Do not question or investigate anything.
Do you work in DC?
JAG:
I mentioned Saddam because “Bush’s invasions” plural were listed as the reason for this current scandal.
I based my comment on him looking for the Taliban on an interview I listed to MYSELF from a soldier who WAS THERE. Why the slight difference between what he said and what was in WikiLeaks? Why trust what someone says compared to what you read on the internet?
I don’t know. Hence the need for an investigation and trail.
I cannot believe you are seriously using Wikileaks as a reason for him not being investigated. How do you know if he was looking for a toilet or for the Taliban? You don’t. You have absolutely no idea and nothing but your own imagination to go on. Hence the need for a trail and an investigation, which is what me and other reasonable people have been calling for.
The military has branded him a deserter. They have deemed it necessary to investigate him. So that’s great and all that you found a paragraph from Wikileaks that makes him completely innocent (conveniently glossing over his emails and sending his computer home to his parents). But in the military, it won’t get you out of an investigation or court martial.
You have given me absolutely no reasonable explanation for why he shouldn’t be investigated. Or why we should release the 5.
Iraq WMD’s……
WASHINGTON — In his final word, the CIA’s top weapons inspector in Iraq said Monday that the hunt for weapons of mass destruction has “gone as far as feasible” and has found nothing, closing an investigation into the purported programs of Saddam Hussein that were used to justify the 2003 invasion.
“After more than 18 months, the WMD investigation and debriefing of the WMD-related detainees has been exhausted,” wrote Charles Duelfer, head of the Iraq Survey Group, in an addendum to the final report he issued last fall.
http://www.nbcnews.com/id/7634313/ns/world_news-mideast_n_africa/t/cias-final-report-no-wmd-found-iraq/
JAG –
Ummmm Karen…. This Blog post is about Bergdahl….
I am discussing Bergdahl …. cuz, that is the TOPIC…..
and I just gave you the entire transmission…. so you can see
for YOURSELF…..
NOT what somebody else thinks is says…..
I am just suggesting that if you are going to accuse Bergdahl of seeking the Taliban….. YOU go read it yourself so, you can have proof of what you are suggesting…..
This is with NO RIGHT or Left filter…..
This is the actual transmission from that day…..
NOT somebody”s interpretation of that transmission…..
.
and in no way does that transcript suggest that he was looking for
the Taliban…..
Why trust that guy and what he says????
why trust anybody on what that says????
YOU can read it yourself and come up with your own
interpretation of what that says……
But JAG, Saddam DID have WMD – chemical ones which he deployed numerous times against entire villages. Did you not follow that? Didn’t hear the interviews from the few survivors who will struggle to breathe for the rest of their shortened lives?
I have previously posted pages of articles spanning twenty years, and hundreds of quotes, including from Clinton and John Kerry, calling for an invasion of Iraq.
JAG:
How to explain this . . . Neo Nazis can be teachers, firemen, or politicians. But negotiating with Neo Nazis is not negotiating with the Third Reich. 12 years after the end of WWII, if anyone found Nazi cells, they would not have been considered as a foreign power. 20 years after . . . 40 years after . . .
Got it?
I have never heard this defense before: He doesn’t need to be investigated or have a trail because of Wikileaks.
Hey, don’t investigate him. Don’t try him. This one copied and pasted section purported to be from Wikileaks sounds just good enough for me. We’ll just assume he was asking for goat milk or working plumbing and leave it at that.
I’m sorry, but this reasoning is so hard to take seriously. It’s just an attempt to save Obama face.
Karen….
Neo-Nazi’s have been elected to many areas of government
in many different countries including the USA on a county level….
———————-
Saddam was allowing the UK weapons inspectors…..
he was saying that he didn’t have WMD’s….
The CIA was saying that Saddam didn’t have WMD’s…..
and even Powell was saying that the intelligence saying they have WMD’s
was not very reliable for weeks….
then ONE day….. that was VERY stance… he was doing a
talk about using aluminum tubes etc…..
and he had gone over a cliff……..
He was doing great til that one day……
and people all over kept telling Bush to wait until the UN Weapons inspectors were done…. Saddam was letting them inspect….
It was Bush who jumped the gun…..
and Congress voted almost unanimously to give Bush the POWER to declare war…. and invade… Thinking that he would exhaust all other avenues FIRST, as he had PROMISED……. That was a HUGE mistake……
Where as usually the President has to go through Congress to
go to war…….