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
No one is afraid you you, Paul, your daily threadjacking aside.
James – be afraid. BE VERY AFRAID. :d
raff, yes, but since when does the US abide by international law?
Anyone is free to veer off-topic at any time.
Ah, the authoritarian-types who love to bark commands.
anon – yes WE do, so listen up. 🙂
This song is dedicated to Nick:
[music]
For its one, two, three, what are we fightin for?
Don’t ask me I don’t give a damn!
Next stop’s Af Ghan Is Stan!
And its five, six, seven, Open Up The Pearly Gates!
Aint no time to wonder why.
Whoopee! We’re all gonna die.
-end
What about all those pedophile priests who get off scot free? That is not Dred Scott free either.
Al – nice try to change to topic. Deal with the topic.
barab, You and others miss my point. I want the facts determined under the UCMJ. I think he should be in Ft Leavenworth if found guilty of desertion. I want the deaths of those 6 soldiers opened up to determine the truth just like the death investigation of Pat Tillman was when the military covered up and lied about his death. I worked in the legal profession. I stated in one of my first comments last week that while I know much about our criminal and civil justice system, I know little of the UCMJ, and asked if any attorneys here served under it to enlighten us. We have someone making snide comments that none of us know anything about the UCMJ, but I found no enlightenment form that person, just sanctimony.
JAG, Thanks for the piece from Democracy Now. I read it and what I agree w/ are the despicable way Bergdahl’s parents have been treated. Although I was out front calling him a deserter, I was also out front calling attacks on his parents outrageous. I do believe the WH was complicit in this. The photo op was stupid and bad on many levels and WH staff have admitted as much. A reeling President needed a PR boost, but it blew up in his face. If they had not put those parents out there, for the President’s needs, I think they would not have gotten nearly as much flak. That DOES NOT excuse the people who have blasted Bob Bergdahl. However, we previously discussed demeanor. Those parents did not want to be out there. They were uncomfortable. They weren’t “eating it up” just like Bergdahl’s comrades weren’t “eating it up.” The parents and soldiers were sucked in by a WH public relations campaign that was cynical and ill founded. just my opinion, JAG. But, I share it w/ many. As you do yours.
Nick and JAG – there is a new report today that Bergdahl’s father was stalking twins back in the day.
Reply to Nick : I have no problem with disagreement. I do not give much importance to the comments of soldiers he served with. They are under many influences/pressures and often have personal agendas. He obviously did not have a very high opinion of his fellow unit members. The feeling was probably mutual.
The Democracy Now video posted by justaG was very informative. Instead of using the term probably, I should have said I fear he will be imprisoned or killed. Chuck stated that POW’s are not put on trial. Perhaps he will not be imprisoned. With the condemnation of politicians from both party’s I would not be surprised. Perhaps he will be hospitalized until the end of Obamas term or until the scrutiny passes. With the press constantly hyping polarizing people and events I always fear for the safety of people caught in the crosshairs.
As Taliban, wouldn’t they have to be released at the end of hostilities according to international law?
O S
consider the source. they’re not going to let a few facts get in the way of a good poutrage.
Bergdahl is a criminal. He violated the UCMJ. He abandoned his post. He was in theater; in a combat zone.
Bergdahl is not a POW. He was not captured by the enemy. He abandoned his post. He left the installation of his own volition. That is a crime and no subsequent events mitigate.
Bergdahl shall be adjudicated by court martial in the military.
Alternatively, an issue the government wants to keep secret due to its potential for adverse political effect may cause the truth to be covered up with a false narrative such as, “Bergdahl is a POW.”
Obama is such an incompetent community organizer and affirmative action college “professor” that the new world order is going to have to order a new world. The inability of Obama to make decisions and lead has caused a geopolitical vacuum that nature abhors. This is a nebulous season fraught with peril.
And just think, if only we had observed the Constitutional requirement for natural born citizenship of a presidential candidate, America would not be subjected to Obama’s bizarre ideology and gross incompetence. If Nancy Pelosi would have done her constitutional duty and vetted Obama for two parents who were citizens, if she would have denied Obama’s candidacy, because his father was a foreign citizen with foreign allegiances, as The Law of Nations prescribed, America would not be in this geopolitical, diplomatic and constitutional Twilight Zone, on the verge of a constitutional Armageddon.
John, I found a comment in the spam filter from you and it is restored: 12:49
Here is part of that video interview ……
I really suggest watching this…
Nick.. YOU MIGHT be interested in this interview……
Here is a GREAT interview with the guy who helped write the Rolling Stone piece on Bergdahl……
We speak to Matthew Farwell, a journalist and veteran of the Afghan war who has been following the Bergdahl story for years. He helped the late Michael Hastings write his 2012 Rolling Stone article, “America’s Last Prisoner of War.” Farwell came to know Bergdahl’s parents after they attended the funeral of his brother who served and in Iraq and Afghanistan and died in a helicopter accident in Germany.
http://www.democracynow.org./2014/6/6/the_inside_story_of_bowe_bergdahl
Well said Chuck…. VERY well said….
for one…. This kid was held captive by some of the most BRUTAL people on this earth…. People who LOVE to DECAPITATE Americans for videos….
Can you imagine living under that threat for 5 YEARS????
Then I just read on CNN and FOX, that he was held in
SOLITARY CONFINEMENT…..
and that may NOT be the worst of what he went through…..
We have NO IDEA if he was brain washed… we have no idea if he was physically tortured……
and Now, we have people calling for his DEATH…. calling for him to be put in prison….. that he should be hanged…. shot.. etc… etc….
Some people accuse him and consorting with the enemy…..
Even his platoon mates do NOT say this stuff…..
Tho, SOME of his platoon mates blame him for the deaths of some who
were in his platoon… EVEN tho, those deaths happened 2 MONTHS AFTER he was captured……..
what makes me so sad about this whole thing is that
who KNEW that being RELEASED from the Taliban and coming back to the USA would be some of the WORST treatment this man will have to endure…..
Makes me sick and sad to be an American……
I fear that some “Patriotic American” will take it upon himself to
kill this poor guy… OR that the lies and criticism that he is going to face, will compel him to take his own life…..
I know that the USA is a partisan country… I just didn’t think we as Americans has become brutal barbarians who lack basic human compassion……
I wonder how many of our commenters are former military with a solid knowledge of the UCMJ or military tradition regarding former POWs?
They don’t put POWs on trial. They just don’t.
All those bloviating about what is going to happen or not happen are just pissing in the wind.
Its really odd to me that the Obama Administration did this lopsided ‘swap’. If they put him on trial and convict him, the ‘deal’ will just get worse! I’m looking for some hidden agenda tat would make sense out of freeing (maybe not free yet but a matter of time) five upper level Taliban types for a low ranking US soldier that already gave up the fight. I’m not blaming Bird-dog (okay, I see its another spelling!); I gave up that kind of fight myself after two world wars last lifetime.
Some of the regulars are not tuned into the Bergdahl case. I for one think that they military is obligated to give him a mental exam. Whether they can determine if he was mentally ill back when he was captured is perhaps dicey. If he is mentally ill now then they have some problems if they want to try him for desertion. If he asserts a defense of mental illness back then, then others will be hard pressed to disavow it. For one thing there is the doctrine of estoppel. The government, the Army, will be estopped to deny that he was thrown out of the Coast Guard for mental illness. They will be estopped to deny any conclusions made by the government in that earlier situation.
What we need is a Congressional investigation as to why he was admitted to the Army when he had been kicked out of the Coast Guard for being nuts. Recruiting directly from mental wards and jails was common back in the Vietnam Days. We have come so far. But, the world is round, and we have come full circle. No pun intended. I told the story on this blog the other day about the guy whom I represented about forty years ago who walked away from the plane which was in Saigon taking him home and then discharge from the Army after his year of combat. He lived out in the jungle by himself for a year. When he walked into a PX to buy something they busted him and put him in Leavenworth for a year. They never gave him a psych exam before his trial or during his time in jail. When he got to Saint Louis after Leavenworth to home and hearth he was nutty as a loon. We could not set aside his conviction because too much time had passed. President Jimmy Carter gave him a full pardon. He was then eligible to receive VA health benefits so he could live in a bed in a VA ward instead on the curb outside my office. His name will be reserved to protect the innocent. America, you have come so far. Oh, and by the way, my client had been recruited from a psych ward.
The Bergdahl fellow needs some good legal representation. He is in America now. Mom and dad need to get some professional help there to see him and I am not talking shrinks.
John, Thanks for the info! It was OBVIOUS Lerner was bad from the first time I heard her speak. She was a Dem political operative when she worked for the FEC back in the 90’s. Not that we need any corroboration that this is a coverup, but it was announced Friday evening, when all bad news is released. I hope the sycophant press finally gets of their asses on this.
Justagirlinseattle wrote:
I didn’t provide the link, because sometimes our posts get stuck in the spam filter when they have links in them…..
Part of the reason, I don’t post here as often….
I got sick of writing numerous LONG thought out posts, only to have them disappear in the spam filter……
~+~
I know this is frustrating but if you lose a comment just write in a new one “Help, lost a comment” and we’ll retrieve it if we see the help. We check here from time to time as best we can, even if we don’t comment. More than two links will automatically trigger the system.
This might sound ridiculous, and to some degree it is, but if you are about to hit [post comment] after completing your text it is a good idea to copy it. If you use windows highlight the text in full with your mouse and then [Control] [C] and that will copy it so you can paste it again somewhere. I don’t remember how this is done on MacOS or other operating systems.
Hope this helps, if it can.
Thank you Darren….. I really appreciate it… That is a LOT of the reason I have not been around much….
Speaking of which… where are some of the other regulars????
I am not seeing a lot of the regulars here today… 🙁
WE INTERRUPT THIS THREAD TO BRING YOU BREAKING NEWS:
Obama and his IRS lost all the e-mail sent from Lois Lerner to the White House and other Democrats.
You won’t get away with it. The NSA has all the e-mails and electronic communication in its Utah complex. Call out the K9 unit – the IT dogs. Sniff out those ones and zeros.
Oops! The NSA is democrat. That can’t be good.
We need a “deep throat” in this matter. Somebody go get a deep throat.
Where the hell are Woodward and Bernstein when you need them?
This is the final Article of Impeachment – Willful and deliberate destruction of evidence.
This is exponential Nixon on steroids.
“Obama is the President, Nixon wanted to be.” The Professor
Obama’s Eighteen Minute Gap. OEMG!!!
Americans will judge the ineligible President’s release of the “enemy’s” general staff through application of ideological criteria.
In lay terms, democrats don’t care what he does; it matters not.
Bergdahl is guilty of desertion as evidenced by eye witness testimony. Once he committed the crime of abandoning his post, perpetration existed and no subsequent events bear on that fact. Bergdahl wrote of his intentions and being intoxicated does not mitigate.
Bergdahl is guilty of violations of the UCMJ – AWOL, desertion, etc.
Bergdahl shall be adjudicated and sentenced by court martial.
Next case.
Geez, I’m not even a lawyer.