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
Bob, Esq,
Are you (or anyone else) aware of any postings on this site regarding the IRS?
(The only one I could find was over a year old. It would seem that would be a relevant topic for Prof. Turley to address.)
(Sorry to go off topic.)
Talk about things getting Nixonian…
IRS lost Lois Lerner’s emails in tea party probe
“Isn’t it convenient for the Obama Administration that the IRS now says it has suddenly realized it lost Lois Lerner’s emails requested by Congress and promised by Commissioner John Koskinen?” Issa asked in an email statement. “Do they really expect the American people to believe that, after having withheld these emails for a year, they’re just now realizing the most critical time period is missing?
http://www.cbsnews.com/news/irs-lost-lois-lerners-emails-in-tea-party-probe/
Pentagon: We Don’t Call Them POWs Anymore
By Mark Thompson @MarkThompson_DCMay 17, 2012
http://nation.time.com/2012/05/17/pentagon-we-dont-call-them-pows-anymore/
It is tiring having to continue to repeat facts. NONE of the six people exchanged were classified as POW’s. AFTER the exchange, Obama called the six detainees POW’s which caused the Taliban to celebrate. They wanted this status to confirm their righteous war. The Army NEVER classified Bergdahl as a POW. It appears dim witted Chuck Hagel may have arbitrarily granted him that status. However, it is clear Bergdahl was never classified or called a POW prior to the exchange. I don’t know WTF the “We don’t court martial POW’s” comes from. Is that the law? Or, is it we just never have? I don’t feel like researching it because I believe it’s moot. Bergdahl was never classified as a POW.
From all the evidence I’ve seen it looks like Obama deliberately evaded congress in violation of law and has come up with two different lies for doing so.
It makes you wonder why the deal was so important to him personally; since he knew congress wouldn’t approve.
justagurl – at this point I will admit that we do not have all the facts on Bergdahl. I have not advocate anything except an examination of the facts.
John,
I am not sure what that has to do with anything. First of all, the USA is not Iraq. Second of all, the USA is STILL not Iraq.
The President of Iraq said today the deserters of that nation’s military would be prosecuted to the fullest extent and may be executed.
Bergdahl committed the crime of desertion of his own volition. No Taliban forces entered the base, apprehended Bergdahl or left the base with Bergdahl in custody. Bergdahl went AWOL. Bergdahl abandoned his post.
Bergdahl was coherent, rational and competent.
Being “under the influence” does not mitigate.
No subsequent events mitigate.
The video I posted earlier in this thread is an interview with one of his platoon mates….. and he says that he thinks that at worse, he was just leaving …. Tho, even he is NOT sure he was leaving for good…….
IL… Where do you get the idea that Bergdahl was seeking out the Taliban??? YOU know that even his Platoon mate said that he was not seeking out the Taliban…. There is NO proof of this and in his writings he said that he felt bad for the people of Afghanistan for having to deal with the Taliban… he HATED the Taliban…….
The biggest problem most definitely is the release, Bergdahl’s desertion and seeking out of the Taliban (understandable though both are) is a trivial diversion in comparison.
Annie… You can email me at my name at gmail….
Thank you Jonathan… I am sorry..
Gurl, I may just take you up on that if this country becomes the Right Wing Utopia they are trying so hard to turn it into.
Paul… Who cares if Bergdahl father had some issue with a girl????
That has NOTHING to do with this case… and it is only being used to smear the president FURTHER…..
From what I read..His father was NOT charged with a crime,….. so, it is just he said… she said….
and really… it has NOTHING to do with Bergdahl being held captive for 5 years….
By the way… Even the Taliban have come out and said, that Bergdahl was NOT trying to join them… and that he was captured while on a toilet….
They have EVERY REASON to want to say that he was trying to join them,… that would be a HUGE win for them… However, they said the opposite…
Will YOU all who say that he tried to join the Taliban, just admit that was a made up rumor????
justagurlinseattle, I have deleted two comments that attack another poster in violation of our civility rule. I expect that you have strong points to make. Just please make those points without insulting opposing posters.
Gurl, I see you are getting acquainted with Paul. 😉
Last night, I read an article on FOX news that this kid spent 2 YEARS in Solitary Confinement….
So, 2 years of Solitary….
5 years under the THREAT of DECAPITATION….
and this is just NOT close to enough for the rabid animals out there….
These people want BLOOD…. they want Obama’s blood.. But, since they can’t have that….. they will settle for this POW’s blood…..
It makes me sick to be an American……
You should see the comments…. they are vile and horrific..
YOU would NEVER know that the USA is a CIVILIZED Society….
Perhaps… POW’s were not put on trial when the right wing was more reasonable and still had compassion and when they were NOt using a POW to smear a president….. You know what makes me so sick… In the past, when an embassy was attacked under any president…. we would come together as a country… STAND AS ONE….
When we brought home POW’s even when McCain was thought to be less than honorable…. WE stood PROUD as a county… Happy that no matter what, we brought one of our own back home…
Our country is not in danger of being attacked from the outside… Our Country is crumbling and weak from the inside…… We are NO LONGER the beacon of Strength and Freedom….. We are split in 2 like no other country…..
The HATE that the Right wing have it astounding……
Next time one of our military is captured….. They are going to join the other side….. Hell, why NOT… This poor kid has been accused of joining the Taliban…. EVEN though…. his writings state that he wanted to help the Afghan people FROM the Taliban, even though he tried to escape twice….…. But, people want to make up stories and make this kid look as bad as possible…..
Even if the military did have a trial… and this kid was found to be 100% innocent…. There is NO WAY anybody is going to believe it….
They are just going to scream and cry like little babies until this poor kid is DEAD….. By his own hand…. or by some CRAZY Patriot….
Oh, I hope you people are proud….
I know I am NOT…. YOU have sunk to a whole new LOW…..
NEWSFLASH – Iraq’s President will execute deserters.
June 14, 2014, 9:13 AM Reporting from Irbil, Iraq
“Iraq’s prime minister on Saturday threatened his nation’s troops with execution if they had abandoned their posts in the face of a blitz attack by Islamic militants who swept through northern provinces this week..
Speaking to a group of army officers in a televised address from the central city of Samarra, Prime Minister Nouri Maliki promised accountability and punishment for any soldiers who had contributed Tuesday to the swift fall of Mosul, one of the nation’s largest cities, as well as other areas in the country.
Iraqi army and police units offered little resistance to the militants of the Islamic State of Iraq and Syria, in many cases shedding their uniforms and abandoning their equipment as they fled the violence, according to reports.
Those who did nothing, and those who clearly abandoned their posts, let them not imagine that they escaped to [safety] in the houses of their families and mothers,” Maliki said, adding that those found to have deserted would be prosecuted “to the utmost, with punishments that rise to execution.
Frankly this was our chance to get rid of those cowards and weaklings,” he added. “This is our opportunity to improve the army and purify it from these elements.”
Paul, why? Why do you need people to be afraid of you? Authoritarianism is dead in an information age, or haven’t you noticed that conservatives have pretty much gotten everything they have not wanted since the desegregation of the armed services? Social media saw to marriage equality in record time.
The same authoritarianism wants Bergdahl in the brig before any kind of hearing, notwithstanding POWs are not put on trial. The feral grunts are unmistakable. The collective IQ struggles to reach double digits.
No one is afraid of authoritarianism any longer, Paul, and it robs your arguments of any seriousness. It makes you look just plain silly, standing there barking orders as you do.
James – it is the teacher is me. Hard to give up barking orders. And I do not need people to be afraid of me. That is the last thing I want. I am not the one buying guns for the USDA. I am not the one who lost 2 years of Lois Lerner’s emails. I am not the one using the IRS to harass my enemies. I am not the one writing executive orders. I am not the one who tossed a flash bang into a baby’s crib.
I really would beg to differ. Authoritarianism is never really dead. Ask Putin. Ask Obama. Ask Castro.