Where To Go With Bowe? A Bergdahl Trial Could Raise Some Familiar Defenses

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