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
Bonnie
I have a vague recollection that when McCain was a POW in Viet Nam, he was forced to make a video that blamed America for everything. But, he was given a hero’s welcome when he got out; but, that was before the internet.
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Of FOXNews(R)…
Nick Spinelli
With his utter contempt for this country, after his time in Fort Leavenworth, there will be a prime time host slot for him on MSNBC.
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Let the man come home first before you play Judge, Jury and Executioner.
Besides… THAT’S Obama’s job!
There is a cancer growing on the Presidency.
It is metastasizing with a vengeance.
Article 32 for Bergdalh and the recruiter who ignored USCG discharge’
“Gurl” …this is not about Obama. I could care less about that pathetic little man. I’m willing to let what you suggest play out, and that every one of those 5 are killed mercilessly by drones or other means sooner than later. Obama does that and I’ll rethink the whole thing.
Nick…we’re on the same page vis a vis the drone killing of American Citizens, however, I will make an exception for Al Awaki…he was actively part of a foreign force trying to kill Americans. However, I am equally uncomfortable as you about the “slippery slope” we step on to when we kill Americans without so much as a how de do.
We live in a messed up world today. My next few days will be spent talking to my Iraqi neighbors and getting their opinions about what is going on their their former countries, where most still have family. I won’t solve a thing but I will learn if the joy they showed with purple fingers (absentee voting) is still there. I doubt it.
Annie … you said …
… what is happening in Iraq that when we leave they will do exactly what they want with their own country.
That’s a pretty fair comment from what I know of the travails of the middle east and our soldiers. One flaw, however, is the presumption that “they” those joining ISIS/ISIL are anything near an majority, or in fact even native to Iraq. The majority of Iraqi have always been subjets to dictators, their brief flourish of democracy thrilled them…but they won’t pull together to stip ISIS/ISIL.
You are correct that there is little we could or can do about it. Saddam was a Tikritie Sunni Baathist and it appears that the minority Sunni factions are again talking over undemocratically…aided considerably by the ISIS/ISIL sweeping in to the country from Syria…whom it is likely that we armed in the first place.
Oh, HI there John Brennan, you good ole Robert Komer clone, see how your Libya to Syria arms deal has gone down? Great eh?
Annie, on this I will agree with you…when our right hand doesn’t know what our left hand is doing, well, ugly stuff happens.
“I have said I have based my assessment primarily on the testimony of people who served w/ Bergdahl.” NS
Are we going to believe our “lying eyes” or the pronouncements of the government?
I have a vague recollection that when McCain was a POW in Viet Nam, he was forced to make a video that blamed America for everything. But, he was given a hero’s welcome when he got out; but, that was before the internet.
We agree, Hastings was one of the few real investigative journalist out there.
baraba, Unlike others here, I will not impugn your right to make a judgment on Bergdahl. I do not agree w/ you assessment. I have said I have based my assessment primarily on the testimony of people who served w/ Bergdahl. On what do you base your assessment, and your assertion, “he is not safe” and “He will PROBABLY be imprisoned or harmed by a misguided citizen.”
I am glad Bergdahl is in his home country. I am glad he is no longer supporting the military. I am sorry he is not safe. He will probably be imprisoned or harmed by a misguided citizen.
I miss Michael Hastings. One of the few journalists who would investigate and write about the facts.
Elaine, Thanks for the post. I think this was a fragile young man who had no business being in the army to begin with.
JAG, Of all the illegal and unconstitutional acts of this administration, in my mind the targeted drone killing of a US citizen is @ or near the top of the list.
Debating cases before they are heard in court and trying them in the court of public opinion are two different things. Nothing wrong with debate, it’s the jumping to conclusions that most reasonable people object to.
If these 5 Taliban don’t throw acid into the face of schoolgirls and stone rape victms in the stadium, there are 5,000, or more Taliban who will. Who do we think we are kidding? America is war weary and it’s evident by what is happening in Iraq that when we leave they will do exactly what they want with their own country. We are not the policemen of the world.
Darren, There is a long history in the US of debating cases before they are heard. The presumption of innocence is in the courtroom. We must respect the decisions. But, we should be, and we are, permitted to debate. That’s healthy. That said, I ALWAYS respect the decisions of a jury. I may disagree, dislike the verdict, but I always respect it. That’s where many folks fall short.
I’ve got my popcorn. I can’t wait for the show to start. “The Rehabilitation Of Sergeant Bergdahl” in 3D. Ooh! The lights are going down!
and I wonder the hate Obama will get when he Drones those 5 into oblivion…… YOU people just do NOT get it…. WE would have to release them anyway….. and we could NOT kill them when they were locked up…. at least NOW, we have a chance to kill these guys, if they are indeed that bad…… I hate the Taliban…. I just think that we need to do things a LOT different…..
The 5 Taliban are indeed super heroes to the Taliban, they are also war criminals. They are responsible for the slaughter of thousands of Shiite girls, guilty of attending school. These war criminals will kill more young girls attending school upon their glorious return to Afghanistan. They like to take the girls to soccer stadiums and hang them for public viewing. They are cult figures for the radical Islamists.
The NDAA which Obama violated by not notifying Congress also had strong bipartisan support.