The Bergdahl Trial: A Desertion Trial In Search of A Defense

305px-USA_PFC_BoweBergdahl_ACU_CroppedThe Bergdahl case will raise some considerable challenges for the defense in what could be one of the most notable desertion cases in modern U.S. history. That is, if it goes to trial. This would seem a case where everyone may prefer a plea. The evidence is strong against Bergdahl, though there is clearly a great deal of evidence that has yet to be released. Cases always appear stronger for the government at the time of indictment. However, what we know is pretty bad for the defense. On the other side, the Obama Administration would clearly prefer a plea to a trial that would highlight Bergdahl’s actions and the possible loss of U.S. personnel looking for a deserter (who was later traded for five blood-soaked Taliban leaders with terrorist ties). Such issues would be obvious for prosecutors to raise when discussing the appropriate punishment, if Bergdahl is convicted. However, it could be an argument that the Administration would not want pursued by prosecutors. While such interference is prohibited as “command influence” on a military case, there have been allegations of such influence in past high-profile cases, including controversies in this Administration. In this case, the pressure is likely to be considerable for prosecutors to accept a plea, though such a plea could fuel previously accusations that the case was being manipulated to avoid embarrassment for the Administration.

Below is the longer version of my column that ran in print this morning in USA Today.

Almost six years after he went missing in Afghanistan, Army Sgt. Bowe Bergdahl now faces criminal charges for desertion and misbehavior before the enemy that endangered his fellow soldiers. The course and delay of the investigation has raised serious questions of political manipulation of the case. After swapping five Taliban leaders with terrorism links for Bergdahl, President Barack Obama faced rising criticism not just for the release of such dangerous blood-soaked characters but also the violation of federal law in ordering the exchange. Worse yet, there are allegations soldiers may have been killed on missions that included efforts to locate Bergdahl.

Those questions are likely to return with a vengeance with the formal charge that Bergdahl was a deserter who abandoned his post and fellow soldiers in a combat area. His case could raise some interesting legal defenses and historical analogies. These cases also suggest that the most promising course for Bergdahl may be a plea bargain, though such a deal could raise political issues for the administration.

From the earliest accounts, the evidence against Bergdahl seemed to refute suggestions that he was a captive. Bergdahl stated that he had lagged behind a patrol and was captured, but there was no evidence of such a capture. There are also allegations that he actively sought contact with the Taliban and may have been a collaborator. For example, Bergdahl is accused of teaching the Taliban how to convert a cellphone into the base of an improvised explosive device. Then there is the strange reported conduct of Bergdahl before his disappearance. He reportedly 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 allegedly 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.” Then there is his description of his commander as a “conceited old fool” and his comrades as “the army of liars, backstabbers, fools and bullies.”

When such evidence is presented at trial, a defense becomes more complex and more nuanced to explain such statements and actions while denying the underlying charges. Complex personalities lead to complex defenses, but those are defenses that rarely work with jurors. Desertion is viewed by most people (particularly most people in uniform) as a simple and straightforward matter.

The most obvious comparison is with the trial of Marine Pfc. Robert Garwood, convicted of aiding the enemy in the Vietnam War. While other prisoners were released in 1973, Garwood did not come home until 1979 and faced allegations of collaboration, including working for the Vietnamese as a mechanic. Notably, there was no allegation that Garwood voluntarily left his post. The Garwood case shows that, even if Bergdahl maintains that he was captured, the military could still charge that he remained on his own free will and collaborated with the enemy. Garwood was ultimately able to secure acquittals on charges of desertion, solicitation of U.S. troops to refuse to fight and to defect and of maltreatment. However, he was convicted on charges of communicating with the enemy and the assault of an American prisoner of war interned in a POW camp. He was given a dishonorable discharge and other sanctions but not jail time. That would not be such a bad result for Bergdahl but there remains the added element of desertion in his case.

The other interesting case comparison is with the trial of Patti Hearst, heiress to the Hearst newspaper fortune. Again, there was not an allegation that Hearst went willingly when kidnapped in 1974 by the Symbionese Liberation Army. However, she appeared in a tape in 1974 announcing that she had joined the SLA. Assuming 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 appeared to change from captive to collaborator. Hearst was ultimately captured on film holding a M1 carbine while robbing a bank in San Francisco.

Hearst insisted that she was brainwashed and that the trauma of her confinement explained her conduct. It did not work, she 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.

Bergdahl should not expect any similar presidential acts of sympathy, particularly from President Obama. After all, the administration paid dearly for his release and fellow soldiers may have paid with their lives.

The fact that Bergdahl may be a deserter might not have changed the merits of the decision to seek his release in a trade. President Obama must have known that there was an allegation of desertion before ordering the swap. It is clear that he acted out of an honest concern for an American in deplorable and dangerous conditions. However, the decision of the White House to avoid informing Congress, as required under federal law, clearly reflected a discomfort of the administration over the merits of such a trade with terrorists. That debate is now going to happen as part of a very public trial.

Indeed, it will be a challenge to insulate a trial from the powerful political winds swirling around Bergdahl and the deal that led to his freedom. The fact is that Bergdahl is not just a defendant. He has entered that dangerous realm of being a symbol in a political scandal.

In the end, it will not be a political symbol but an Army sergeant who will have to answer for these alleged crimes. Bergdahl may, for the first time, publicly answer some of these allegations for himself. It will not only be the first time that he will be heard, but the first answer that the public has received in months of controversy over his release.

Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors and has handled military and national security cases as criminal defense counsel.

60 thoughts on “The Bergdahl Trial: A Desertion Trial In Search of A Defense”

  1. I know that I am impressed by the amount of style demands and personality blather here, instead of the thread topic…that of Bergdahl’s potential trial…which has NOT been ordained yet…as I tried to explain in my summary of the UCMJ process. Carry on ….Zzzzzz…..

  2. Happypappies,

    I posted the links to the articles to add information to the conversation. Nothing more…nothing less. I think it best to know as much as possible about a subject before expressing an opinion.

  3. Many people post articles that are in support of their “premise”, Happy. That’s sort of a given. No need to state a premise first. It’s obvious or it should be to most readers. As for “personal” conversations I suggest if they bother you, that you don’t engage in such conversations or initiate them yourself, as you often do. The continuous slur of calling everything and every publication “progressive” and yes you are using it as a slur, is simply emulating what a certain group around here does daily. It appears you are impressionable.

  4. Happypappies,

    CNN a and The New York Times are progressive muckraking papers/news organizations? Who knew????? I never brought up the “sensitive boy” issue. That is something that you incorrectly inferred that I had done. Maybe you’d be happy if I posted “stupid links” from Breitbart’s site?

    1. Elaine M

      I don’t do Breibart’s site

      You seem to be under the mistaken idea that I adhere to some sort of ideology in particular. You must have missed how I go to bat for LGBT around here. That certainly is not popular in purely Conservative camps.

      Repeatedly I have stated that I am Socially Progressive and Fiscally Conservative.

      Of course, even here there are times when I have to occasionally ecamine my premises as I am an existentialist.

      I consider all papers unless they are purely from an educational point or from peoples blogs, like this one that I have come to respect, to have an agenda,

      I find it’s best to always research the research. Of course, not all of the NYT is Liberal, but most is. It is a Liberal Paper and the Editor is a Known Liberal>>>>>>Liberal bias

      Some critics of the media say bias exists within a wide variety of media channels, especially within the “Main Stream Media”, including network news shows of CBS, ABC, and NBC, cable channels CNN, MSNBC and the former Current TV, as well as major newspapers, news-wires, and radio outlets, especially CBS News, Newsweek, and The New York Times.[45] These arguments intensified when it was revealed that the Democratic Party received a total donation of $1,020,816, given by 1,160 employees of the three major broadcast television networks (NBC, CBS, ABC), while the Republican Party received only $142,863 via 193 donations.[46] Both of these figures represent donations made in 2008.

      Now, I like the Washington Post also as there are some interesting and rather unbiased reporters in there and I use it frequently and I find that my Liberal friends do like that also.

      I also deplore The Daily Caller or any other such jingoistic tripe so I am sorry to disappoint you on this matter.

      Please understand, if that is possible, that your linkage pointed to an opinion of “the boy” being confused and dazed. Kind of like that song you know?

      Another thing. I do have to admit, I suppose the links are preferable to some of the insufferable conversations that go on around here that are personal. It is just that I don’t know exactly what you are getting at or where You are coming from obviously because, after all, it’s just a link and not you.

      I have noticed that people coming from a progressive stance post links and do not state a premise so I will have to keep this in mind in the future when reading posts.

      But I wouldn’t be upset over me calling a paper muckraking. That is a Liberal tactic to show the dirt. It is okay to do after all, it is dirt.

  5. Now that we’ve got the personalties things settled (?)….here is what I don’t understand: Neither the media, TV and Internet, see to understand how the UCMJ works…as compared to civilian criminal procedures. Same for most commenters here and elsewhere…which may be understandable due to lack of military experience. I say that because I’ve neither heard nor read any succinct description of it.

    Step 1: Determination by the commanding officer of the individual’s unit or battalion whether “non-judicial” proceeding (a hearing before & analysis by the commander directly) is appropriate under Article 15 UCMJ. An individual can refuse procedure this and seek a Court Marital subsequent to the steps 2 & 3 below. Because Article 15 usually requires a mea culpa by the individual, of serious enough, the may opt for the more formal procedures.

    Step 2: AR 15-6 investigation, frequently with a board of inquiry made up of officers. [Similar to the police investigation and analysis of civilian affairs]. THIS is the stage that has ended, by a process that determines if criminality occurred.

    Step 3: An Article 32 UCMJ investigation and analysis to determine if sufficient evidence is available to bring charges with a likely hood of conviction or other mitigating adjudication by the Court Martial. [Similar to a Pre-Trial Hearing or a Grand Jury proceeding] THIS phase is just beginning, or at least if already underway, barely revealed to the public to date.

    Step 4: Court Martial, by either a Special Court (one judge and a three officer panel) or a General Court (one judge and a panel of 5 up to 12 officers, one of which can be an NCO). Given the severity & publicity of this case I doubt a Summary Court Martial would be used (one judge, like a civilian bench trial). This form of Court generally accepts the Article 32 evidence determinations and then listens to any mitigating matters a defense would bring…usually aimed at mitigating the sentence conditions. Court Martials can “acquit” if the defense case is strong enough, but I don’t recall any in my time (doesn’t mean there has not been any).

    Footnote 1: Regarding the recently posed reason for Bergdahl’s leaving his post to seek another unit to whistle blow at…that’s nearly nonsense unless he was just extremely ignorant of other means to reach personnel who could hear his complaint…anything from using a computer or similar device to contact his Congressperson or the applicable IG and request anonymity. Had that actually been his goal, he could have waited until his unit was operating with other units and taken that opportunity to leave his post and go directly to the other unit’s command. Nothing is impossible, but I doubt that defense will hold much water.

    Footnote 2: Any any time in the above steps the individual can make a plea with some version of mea culpa…e.g., I did it & here is why. He has not done that. Foolish IMO because doing that he might only have faced being put up for discharge, forfeiture of all pay and benefits, and usually given a “General Discharge”…and otherwise be a free man.

    1. Nothing is settled Ari when people don’t use their Brains God gave them and post stupid links from propaganda Progressive Muckraking papers. You know? I can’t stand the sensitive boy issue. Sorry. I had another one of these this weekend tell me when I told her about this thread “Oh, well, it wasn’t his fault he had to fight in that war.” When I told her about them spitting on my Husband when he came back. I wanted to slap her.

  6. And Happy, EVERYONE, conservative, progressive and libertarian all post LINKS to articles they quote from. You are the ONLY commenter here who doesn’t and it cause all manner of confusion. Don’t you wonder why people don’t understand what you’re talking about half the time? I’m trying to help you out here, not criticize you.

Comments are closed.