The 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.