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. Some of us are born insane. In fact, look to thy father and thy mother. Insanity runs in the genes. If I was defending him I would have the defendant’s mother and father examined by a real psychiatrist. If one turned up wacko then I would posit the not guilty by reason of gene pool defect.

  2. How is it “temporary insanity” if he was quoted as planning to go off base if the deployment was “lame?” And he spent all his free time studying maps of Afghanistan? Doesn’t sound very temporary to me.

    I hope they release all the details of the investigation to the public.

  3. JT: Here are some things you might consider: 1) The defendant can take the Fifth and refuse to testify on grounds that what he might say might incriminate him; 2) He can take the Ninth Amendment on privacy grounds; 3) He can plead not guilty by reason of insanity at the time and he does not have to prove that he is insane now and may state that he got better mentally under the care of the Taliban. 4) He can challenge the allegation that he deserted in time of war. There was no declaration of war and has not been one since Dec 7, 1941, which is a day which will live in infamy. 5) The President can pardon him.
    6) The next President can pardon him.

  4. So much for truth to power. I agree with Paul, Obama, Rice and others should be hauled into court as well. Still nothing on the rule of law applied to Patraeus or the at minimum 1.3 million people we’ve killed in our war on terror.

    But Bergdahl. Now that’s a true injustice. Used as a pawn in the sleazy politics we practice with groups like the Taliban when it’s in our interest. Put him in a cage so he cannot hurt anyone else.

  5. One question that should be asked and most likely will be, however who gets to it first will be interesting, is, “Where did you think you were going, if indeed you were snapping under pressure and were going ‘over the hill’? This could figure in a temporary insanity/snapping/traumatic stress issue. It’s not as if he jumped ship in Marseille on the way to the battle front.

    From the info provided it doesn’t seem that he went off wildly into the night. He ‘wandered’ off; to do what? Write poetry?

    These points are mostly owned by the defense.

    Calley got off because the atrocities associated with him were connected by his defense, both courtroom and public opinion: Nixon, Carter, Clinton, to the national mindful*k and hidden guilt that was Vietnam. In other words this was designed into a tragedy within a tragedy and Calley’s guilt was absorbed by that of the nation. If Americans slaughtered three million Vietnamese in this colonial adventure, over a million and a half innocent civilians mostly killed by bombing raids that dropped more ordinance in that one war than was used in both WW1 and WW2 combined, then put in perspective Calley’s atrocities were part in parcel of the ‘War is Hell’ routine. Otherwise Calley was no different than the Nazis that wiped out villages in France and other occupied countries in retribution for the deaths of German soldiers at the hands of resistance fighters. It’s the old morality by victory routine.

    Bergdahl’s defense will be partially rooted in this confusion. The sideshow will be the verbiage of the lawyers for the defense.

  6. Paul C … the only (minor?) mess may well be the images of a touchy-feely Obama with Bergdahl’s mother in that Rose Garden fandango. He bordered on good ole Joe Biden, or even Horn Dog Bill. She’s quite pretty and I guess that is hard to resist….for an idiot. Obama’s “handlers” failed him that day for sure.

    Now Bergdahl’s daddy was a garden variety “decorated” (the weird beard, etc) moron….given his remarks then and subsequently. Not too hard to see how Bergdahl grew up confused and silly. Still no excuse. As a soldier you can just cower and hide in a firefight, many have done so, but to walk off to enemy territory, just isn’t one of the things that can be understood. It is more than shell shock or cowardice. A guy, or woman, who is afraid, for whatever reason may be worthy of sympathy. None of us know for sure what will happen when the bullets “snap” past our heads or mortars explode within a few feet of a fighting hole, until we experience it.

    I’ll be the first to admit it scared me wet pants witless the first time and only the fortitude of the others around me made it possible to overcome the fear per se. That is how the American military works, one guy looking out for the others around him until everyone is doing the same thing….even if a circumstance requires a PFC to rise to command a platoon due to attrition of the senior members.

    In Bergdahl’s case, it seems he just ran away. Wrong choice and he should pay for it.

  7. Susan Rice said he served honorably and with distinction, I see no reason why he would plea to anything.

    1. Libby – If I were Bergdahl’s attorneys, I would have Rice and Obama as character witnesses.

  8. It appears from some of the news reports that the decision to charge had been made in October but Obama had them hold off on it until after the elections. This is long enough after the elections and early enough before the next election, except that people are announcing they candidacy. Whatever, I think it is going to be a mess for Obama.

  9. Dan … the determination that a crime has been committed has already been made via the AR 15-6 inquiry (or whatever “equivalent” this administration devised), next comes the UCMJ Article 32 investigative review to determine if sufficient evidence is present to bring a formal Court Martial Charge for the criminal act(s) identified by the AR 15-6 Inquiry. If the Article 32 crew determines the evidence sufficient …. then the issue of what kind of Court Martial is preferred and negotiations for a plea bargain entertained again, since the plea concept has been on the table from the AR 15-6 inquiry. Post Article 32 findings, if sufficient, the theme is usually “bring the guilty booger in” as I’ve noted before….with most arguments about mitigation of sentence.

    Full disclosure: I have been through an AR 15-6 investigation & board of inquiry where criminality (dealing with lost military equipment…none of which was really lost, just transferred on orders from 06’s and above) was not determined against me, and one other NCO, both who signed the transfer documents on orders from above as I said…and I was able to prove it. Only flaw from my point of view was that the Board of Inquiry was adjourned, not dismissed, since the Army chose not to pursue the 06 & 07’s who were the actual culpable parties. Even then those officers had good intentions, if misguided, for the most part and only one or two were potentially acting for personal gain, which is very hard to prove.

  10. mr. turley has compared this case with that of robert garwood, acquitted of desertion during vietnam, but convicted of associated crimes. curiously, mr. turley has also compared this case with that of patty hearst, who was never in the military service of this (or any other) country.

    however, for reasons of which are not apparent, mr. turley has omitted the case of self-confessed deserter eddie slovik, the last american convicted and executed for desertion since the civil war. slovik claimed to be too scared to serve in the front lines in france during ww2. the story was made into a pretty good tv movie, which starred martin sheen. in the movie, the execution is carried out while bing crosby sings “have yourself a merry little christmas,” even though the event occurred on 1/31/45. oof.

    i agree with dan: “This worrying about whether it is ‘good for Obama’ or ‘bad for Obama’ is an affront to human dignity, the US armed forces, and justice.”

  11. Obama’s best move would be to step completely out of the picture and let the military handle it. How he did it and why he did it should take back seat in another vehicle to what Bergdahl did and why. He overpaid for the sap. That much is true.

    Hearst wasn’t a soldier who had taken an oath and upon whom the lives of others depended. She was defended, in part, by the concept of ‘Stockholm Syndrome’ or one of its offshoots. This was a powerful and widely accepted argument at the time, a time of hijackings and kidnappings on a monthly basis, a time of social upheaval that divided Americans and citizens of other Western Nations quite clearly. Berghahl is of a time, post 9/11 and place, Afghanistan/Taliban/Al Quida that offers little if any room for interpretation.

    That he was not suited/fit to be there is a condition shared by himself and the Army. That the Army should have seen his ‘problems’ and removed him will surely figure in the arguments of the defense. However, honor, codes, and service are primarily the responsibilities of the individual.

    This will be interesting. Send in the Dershowitz.

  12. The case is very simple as long as you don’t view everything in the universe through the lens of domestic politics.

    Recovering Bergdahl was a sign of our ‘leave no one behind’ mentality and is obviously the correct decision. It is something we can look at with pride when very little in the war on terror can be seen with honor.

    Next, if Bergdahl can be seen as having committed a crime, then he should be tried for it. All the relevant facts can be heard, without political interference, and a decision reached as for any other defendant.

    This worrying about whether it is ‘good for Obama’ or ‘bad for Obama’ is an affront to human dignity, the US armed forces, and justice.

  13. On the contrary we can expect a Presidential pardon for the deserter. He is President Obama’s kind of guy.

  14. I feel a little guilty that I anticipate this trial with a curiosity that borders on enthusiasm. Will the defense stick with their “lagged behind” contention, or aim towards some sort of mental illness “he cracked” defense?

    Do such defenses have any merit? This guy seems like such an enigma–will he emerge from the inevitable media frenzy as the complex character you reference above, or will he reduced to the black and white terms media seem to prefer?

    The anger of the Obama administration will be palpable, given the embarrassment factor. I haven’t felt obliged to afford Obama and his hear no evil/see no evil/speak no evil/just do some evil gang much latitude of late, but what a corner they got into with this one: if they’d let him to rot, the critics would have been all over him with headlines like “Muslim President Abandons Desperate American Hero.”

    With no new episodes of Homeland available, Bergdahl is the next best thing.

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