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. Huh? I’m talking about when you cut and paste from ARTICLES in any comments, not what is here on this thread in which you were speaking to someone else. I have no idea what you are talking about either. You are making no sense to me either. Elaine posted the excerpts, Elaine posted a LINK to those excerpts, THAT is how it should be done. Or else people get confused and don’t know what the heck you are talking about. IF you use excerpts from published articles you should be providing a LINK to that excerpt. Sheesh.

  2. happypappies,

    “I think that my explanation was clear enough to understand also. If you chose to not understand it, that is your pejorative.

    “I am not going to cut and paste down just 2 and 3 lines when it is apparent what we are talking about Ingannie and Elaine M. You would not request it from another Progressive on there you were friends with.’


    I have no idea what you’re talking about. You’re making no sense at all. It appears, though, that you have been trying to make an issue out of my posting excerpts from and links to a CNN article and a NYT opinion piece.

    1. Elaine M

      Well good

      I wouldn’t want you to do that. Since I was talking to Inga Annie regarding that 1 separate link. You don’t know what I am referring to because I was not addressing you and I had separated you from Ingannie by her name which is how people normally communicate with each other (lol) And I had separated your names. And I am not going up to the comments to show you again how I did because I know it’s clear. Oh-look – I am starting to repeat myself like pete and repeat.

      As far as sad sensitive wandering young men go in the mountains of Afgahnistan.>>>>>

      Just because I thought that it was actually partially your own opinon on Bergdahl and I replied to it as such does not warrant you to reply you have absolutely no Idea what I am talking about when you post Liberal Progressive links in favor of the Sensitive Young Man being confused..

      Now, we can continue to banter this way all night long if you wish. That’s fine with me. You were enjoying it enough on the German thread.

  3. No Happy, I wasn’t upset with you. I was trying to get you to post a source LINK to your cut and pastes. If you simply cut and paste an excerpt from an article without at LEAST quotation marks or a LINK it may be misconstrued by others as being YOUR words, when it’s not.

  4. happypappies,

    I’ll repost my explanation to you:


    I have no idea why you’re telling me to “Please be real about Sensitive.” All I did was post excerpts from and links to a CNN article and a NYT opinion piece.


    I think that explanation is clear enough to understand.

    1. Ingannie

      One post above was the link as I explained to Po – the note was to him – he saw it and thanked me.

      Elaine M.


      I think that my explanation was clear enough to understand also. If you chose to not understand it, that is your pejorative.

      I am not going to cut and paste down just 2 and 3 lines when it is apparent what we are talking about Ingannie and Elaine M. You would not request it from another Progressive on there you were friends with.

      If this is difficult to understand, it is no wonder our children are in trouble regarding their comprehension abilities and testing

    1. Elaine

      Is that entire two posts a cut and paste even though some is separated? Inga gets upset with me for that. lol. But she will deny it.

      Was this part of the cut and paste also

      No Need to Prosecute Sgt. Bowe Bergdahl

      Or is that your Opinion

      I mean – I don’t click on the links Elaine. I explained why. I don’t agree with the asessment.

      Anyway, that is what I am talking about. lol you are a scream

  5. @Elaine

    First, I am sooo grateful that you posted the story explaining Bergdahl’s valid reason for going off like that! Oh, I take back every mean thing I every said to you. To prove that I am truly remorseful, I am going to let you in on this deal that I have going on. There is a bridge in New York that is going to be privatized, and you can get in on the ground floor!

    All you need to do is send me $99.99 so that I can forward the papers to you by FedEx. Plus, I will need your bank account routing numbers sooo we will know where to send your direct deposits! The money is sent directly from the toll booth to your bank account.

    Squeeky Fromm
    Girl Reporter

  6. Happypappies,

    I have no idea why you’re telling me to “Please be real about Sensitive.” All I did was post excerpts from and links to a CNN article and a NYT opinion piece.

    1. Elaine M

      Is that your stock answer to me when I disagree with your opinon? You gave an opinion and I disagreed with it. You posted a silly link from a silly Liberal Post. That is fine. This is America and you are entitled to do so. I have done extensive research on this and I don’t feel the need to pull all of my links to prove to you that Bergdahl failed miserably in the Coast Guard when all you have to do is Google Wiki. If the Government can’t even check up on something like that, there is something seriously wrong with our government and I stand by my statement and that is not all you said and you know it.

  7. No Need to Prosecute Sgt. Bowe Bergdahl

    It won’t be hard for military lawyers to argue that Sgt. Bowe Bergdahl violated military regulations when he slipped out of a remote outpost in Afghanistan in 2009 and became a Taliban prisoner for five years.

    They would have a tougher time explaining why it’s worthwhile to prosecute a soldier the Army recruited despite significant concerns about his psychological state and who endured years of torture and privation during his captivity. As a general matter, the American military has good reason to punish service members who desert. However, it should exercise discretion in extraordinary cases. Sergeant Bergdahl’s is certainly one.

    Sergeant Bergdahl, who joined the Army in 2008, was among the legion of recruits who were granted eligibility waivers to join the military during a period when it was struggling to attract applicants because of the multiple lengthy deployments to Iraq and Afghanistan that were common. His attempt in 2006 to join the Coast Guard was short-lived; he was discharged 26 days into basic training because of concerns about his psychological state. Before Sergeant Bergdahl walked out of his base in Paktika Province on June 30, 2009, it was clear to some of his family members back home, and some of his comrades in Afghanistan, that he was emotionally distressed and at times delusional. Citing an Army investigative report, his lawyer, in a letter to the military, describes his client as “naïve and at times unrealistic.”

    1. Elaine M

      My Husband was beaten by his Father probably 2 or 3 times a week back in the day and was in the “Vietnam war and was sensitive and unrealistic and had no choice whatsoever so he signed up for the Navy as he was not college material. He went through hell like the rest of those men and was spit on when he came back and now is in the Veterans Home.

      Please be real about Sensitive. If anything, the Government should not have let him back in as he had problems when he was in the Coast Guard.

  8. @ChuckS

    As far as the witty repartee, I was here when some of those people whose absence you lament were posting. I found their responses to my witty repartee to mostly consist of dismissals full of smarmy smugness and name-calling. Seldom did they lower themselves to actually discuss anything which did not agree with their narrative, or agenda. I think most of them are now at some other website called Pansies For Plato or something like that.

    Squeeky Fromm
    Girl Reporter

    PS: “Pansies For Plato” is an example of witty repartee. . . 🙂

    1. Squeeky – it is Flowers for Algernon. They are in the “sundown phase.”

  9. Elaine, oh that’s interesting. So he could be a whistleblower? Maybe the guys in his unit were so angry at him because they thought he may have been getting ready to get them in trouble for wrongdoing? I guess we’ll have to wait and see what comes out in the proceedings. So many folks ready to hang him up or have him shot. If was a whistleblower, how is he any more a traitor than Snowden, who is a whistleblower hero.

  10. Army report: Bergdahl intended to walk to nearest base
    By Barbara Starr, CNN Pentagon Correspondent

    Washington (CNN)Sgt. Bowe Bergdahl told the military he left his unit in eastern Afghanistan in July 2009 intending to walk to the nearest U.S. military outpost to report wrongdoing, believing he could not trust his own commanders to deal with his concerns, according to sources familiar with the Army investigation. It is the clearest indication yet of the motive behind his decision to leave his post.

    Bergdahl was planning to report what he believed to be problems with “order and discipline” in his unit, a senior Defense official tells CNN. A second official says Bergdahl had “concerns about leadership issues at his base.”

    This information is part of the report presented to General Mark Milley who this week decided to charge Bergdahl with desertion and misbehavior before the enemy. This information outlines what could be a key part of Bergdahl’s defense, which the army is already aware of.

    Both officials declined to be identified because of the legal proceedings against Berghahl, but both have direct knowledge of the information outlined in the report. “This was a kid who had leadership concerns on his mind,” the second official said. “He wasn’t fed up, he wasn’t planning to desert.”

  11. Dang it…I think my comments from 1:14 PM onward were meant for the “Co-Pilot” thread. Since I can’t delete or edit here, y’all stuck with my error. SAT. 🙁

  12. I should add that I will be leery of flying on any Airbus aircraft for a while, based upon what I’ve learned here (thank you all) about their fly-by-wires system that can, on occasion, resist pilot input…let alone ignore altitude readings for “impossible” setting parameters..e.g., like 96 feet when over mountains some 14K feet+ high. … WadeWillaims link to the system in graphic format gives me chills. But thanks for the post just the same. I’m prone to trust technology too much at times…until it dawns on me that some of the designers have never done what they program for others.

  13. >b>Bugsy said …

    How difficult would it be to extend all cockpits to accommodate a tiny, and I do mean tiny, restroom within the cockpit? Yes, the airlines may have to forgo a few of its precious seats for passengers, but there would never again be an instance of leaving the cockpit with only pilot one at the helm.

    Bob L said …

    Before the days of “transistorized flying”, we had a pilot, copilot, AND navigator/engineer in the cockpit. Time to advance backwards?

    Randyjet said …

    My faith is in the pilots, not technology. It is true that we are not infallible, but neither are engineers, their hubris notwithstanding.

    Wadewilliams said …

    Highly recommend this article for those who wish to know how the door locks work.

    Mb>Randyjet said …

    Wade that says nothing at all about the plane or the pilot. Once again for those who have not read my previous posts or have a problem with comprehension, the Airbus is ALL fly by wire. The plane will only let the pilot do what the plane thinks is appropriate. The pilot makes a command with the side stick controller and the plane decides if it will comply. The plane has the final authority in normal law, NOT the pilot and there have been instances where the pilots had no control at all.

    First, I’d like to see all cockpits expanded to accommodate a 3rd flight officer and, on the opposite side a water closet for crew use only in the cockpit. Probably not likely due to the economics of decreased seating…but if done, with a rule that no less than two officers are in the cockpit at one time, they could institute the two-man agreement system for the fancy automation Airbus uses. Similar to how launch commands are set up in missile facilities. Today’s technology should not allow a descent setting to 96 feet when over mountains, when the relative height distances can easily be observed….e.g., no setting for less than 1000 feet over any mountain in the flight path should be available.

    Next, I’d prefer all three officers remain in the cockpit, but realize there are times when one must leave for the passenger section…so there’d still be two in the cockpit in control of the two man/woman set up for radical changes to the automated system(s).

    My years of (as a passenger) flying began with DC-3’s and the fumiest were those times in short haul Beechcraft 99’s….in both cases you could see in to the cockpits…but I was young and immortal and didn’t know any better. The guys who flew the Beech 99’s had to be old dive bomber pilots based upon how they flew in to Algonac airport in Michigan on the Lake Huron shore, swoop, swish, whap and you’re on the ground taxing. 🙂

  14. Chuck Stanley said…

    Sorry Darren, but that train left the station well over a year ago

    Perhaps, but I’ve not been here long. Darren’s point is well taken by me, since there is no reason we can’t skip the nonsense and honestly engage opinions not personalities….even now. Most “trains” return to the same stations regularly…it can happen here as well. I’ve not agreed with all of your commentary, but enjoyed each one and considered their import…a couple even changed my mind on one point or another. In your area of obvious expertise it well worth anyone’s time to just shut up and listen. That, or I am just weird…which is possible. Been called worse here, in fact, and I now simply ignore those who do that. If I see a certain collection of commeters positing in staccato fashion…I now just skip the whole thread…which may mean I miss the good avoiding the silly or obnoxious. I might need to tune that up a bit.

  15. Anarmyofficer….yeah, sometimes comments disappear, and not in to moderation…it is a WordPress thing that is hard to manage…I only know one blogger who has it under control (“Anne’s Opinions” in Israel). First thing before you give the comment up, try the update tab on your browser on the page you are one that fails to show your comment after submission…works about 75% of the time for me & voilà the comment appears. Thank’s for “BLUF” reference….nice nostalgic reference to the regular “Staff Study” format that I’ve not had to use since retirement, with only a few exceptions in consultation.

    I think, if his lawyers are smart, and he listens to them, he will get by with 5 years, or less, for copping a plea…he doesn’t even have to push it to a Special Court Martial to accomplish that. I do wonder why he wasn’t tagged as a odd-ball (aka Sh*tbird) before he ran off…then he could have just been sent home without incident.

    Long long ago I recall a generally nice young man who just wanted “out” and blew weed smoke in every MP’s face or Officer’s face he encountered to accomplish that…and eventually he was sent home and discharged with a general discharge. Actually he was a bright kid, a draftee, and his job was not dangerous..he was the company clerk well away from a combat zone. I was what everyone called a “lifer” NCO and yet I liked him (he was honest and did a good job on the personnel issues he handled) and tried to convince him that where he was cheap weed and 10 cent beers weren’t all that bad a deal for his 365 & a wake up. He still resisted in his genteel manner and got what he wanted.

  16. Aridog,

    I replied on the other thread (I thought, but I guess wordpress ate it), but BLUF: I just won’t second guess my comments on here. I never have posted anything completely crazy, I just won’t agonize over posting as much! But I do agree with you on your advice.

    As for Bergdahl:

    When we finally had him back, I don’t think I was alone in being happy not to have to look at posters of him anymore, or sending folks out to look for him. Generally, we all knew he wasn’t a victim of circumstance… he did it to himself (which was clearer later on when more evidence of the fact was apparent).

    The celebration of his return annoyed me, because I was anxious for him to be tried for deserting his post. I also hoped against hope that there was some sort of explanation, but Occam’s razor suggested that hope would be in vain. I didn’t want to be the jerk who threw him immediately in a trial after being captive for so long, but I wasn’t okay with him being celebrated either.

    As for his defense? Crazy. That’s about all I can suggest. Claim the man was nuts, and see if that gets him less time in jail. What other excuse can he use for making the awful decision that he made?

    He isn’t the first person to want to talk off of a base in Afghanistan, and isn’t the first person to make it out the gate. He is, however, one who made it out the gate unnoticed to become a captive for years. The other few I’m aware of were mostly kids (18-23) who were either (actually) crazy, or had some idea to join the local muslim community and leave the U.S. military. In those two cases, the Soldiers were sent home, because nobody wants an incident.

  17. Several weeks ago the claim was made that 1.7 million North Vietnamese civilians were killed in U. S. bombing raids. I commented that I would be interested in the source for that number.
    I received no response. The same individual just stated that 1.5 million civilians were killed, mostly by U.S. bombs.
    I won’t bother to ask for a source again. I would suggest that interested readers/commentators check the veracity of these statements.

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