Bowe Bergdahl’s 2017 desertion and misbehavior before the enemy conviction has been reinstated by a federal court. The court ruled – correctly in my non-lawyer
opinion – that a district court judge does not have the authority to interfere
in any way with the military justice system. Let’s review this case.
On the night of June 29-30, 2009, U.S. Army Private First Class Bowe Bergdahl deserted his post at Observation Post Mest in Paktika Province, Afghanistan. Bergdahl was assigned as an infantryman to the 1st Battalion, 501st Parachute Infantry Regiment, 4th Brigade Combat Team, 25th Infantry Division. He had enlisted in the Army in 2008.
Bergdahl was captured relatively soon after deserting his post. The exact date is unknown; however, the Taliban released a video of Bergdahl in captivity on July 18, 2009. This began his five years of captivity by the Haqqani network under extremely harsh conditions.
In May of 2014, in a colossal lapse of judgment, the Obama administration agreed to release five extremely dangerous and notorious senior Taliban leaders from the U.S. detention center in Guantanamo, Cuba in exchange for Bergdahl’s release.
On May 31, 2014, Bergdahl was released to a U.S. special operations team at a helicopter landing zone in Afghanistan. The “Taliban Five” were transported to Qatar who had agreed to hold them and restrict their travel. Chalk up another failure for the Obama team – the "Taliban Five" later all became involved again in operations in Afghanistan.
Following an investigation to confirm what virtually everyone already knew – on March 25, 2015, the Commanding General of U.S. Army Forces Command authorized charges to be brought against Bergdahl under the Uniform Code of Military Justice (UCMJ):
- Article 85 — Desertion with intent to shirk important or hazardous duty
- Article 99 — Misbehavior before the enemy
The charges were referred to a military court for an Article 32 preliminary hearing.
It was noted in the charges that several U.S. troops were injured in attempts to locate Bergdahl after his initial disappearence/desertion. Members of his unit believe that other soldiers lost their lives in these searches.
For those of us who have served in combat zones, these two articles are considered to be as bad as it gets. Desertion (Article 85) is extremely serious and potentially punishable by death if committed in time of war. We can argue over the question of whether Afghanistan was a war or not. This was one of the Obama Administration talking points as several officials and supportive media attempted to downplay Bergdahl’s desertion. At one point, Obama's National Security Advisor Susan Rice declared that Bergdahl "served the United States with honor and distinction." Nothing could be further from the truth.
However, the charge of “misbehavior before the enemy” (Article 99) is the big one. It is explicitly punishable by death or another punishment directed by a court-martial.
In September 2015, the Article 32 preliminary hearing was convened. There were attempts by some in the Obama Administration to downgrade this into a lower-level special court-martial, but in the end, the Army stuck to their guns (no pun intended) and referred the charges to the highest level, a general court-martial. Bergdahl was arraigned at Fort Bragg, North Carolina, on December 22, 2015.
In December 2016, Bergdahl asked President Obama for a pre-emptive pardon ahead of his trial. To his credit, in a rare moment of moral clarity, Obama did not do so.
On October 16, 2017, Bergdahl voluntarily pleaded guilty without a plea bargain and opted for a military judge only trial. Probably a smart move – presenting these serious charges to a full general court-martial panel in the face of overwhelming inculpatory evidence likely would have resulted in a harsher sentence.*
On November 3, 2017, the military judge sentenced Bergdahl to a dishonorable discharge, reduction in rank to Private (E-1), and forfeiture of pay, but no prison time, despite prosecutors seeking 14 years of incarceration. I agreed with the judge's decision to not impose prison time.
After his sentencing, the military appellate system kicked
in. These are serious charges, with a serious sentence – a dishonorable discharge
from the armed forces carries serious consequences.
- July 16, 2019 — Army Court of Criminal Appeals (ACCA): Affirmed Bergdahl's conviction and sentence.
- August 27, 2020 — Court of Appeals for the Armed Forces (CAAF): Affirmed the ACCA decision, upholding the conviction.
- February 2, 2021 — Final military appeal: CAAF denied Bergdahl's writ-appeal petition, exhausting his military appellate remedies.
On February 17, 2021, Berdahl’s lawyers filed a lawsuit in the U.S. District Court for the District of Columbia asking the court to review the military justice proceedings and declare that Bergdahl's conviction was unconstitutional and should be vacated.
On July 25, 2023, a U.S. District Judge in that court vacated Bergdahl's conviction on procedural grounds.
On September 1, 2026, the D.C. Circuit struck down that
decision because a federal district court lacks authority to vacate a
court-martial conviction. The court ordered Bergdahl's lawsuit dismissed, leaving
his original military conviction in effect. His dishonorable discharge was effectively reinstated.
Eugene R. Fidell, Berdahl’s very capable and experienced attorney said the case is about “the integrity of the military justice system,” and added that “there is a grave command influence problem that has pervaded this case from the very beginning.” Fidell’s team has 45 days to weigh several options for challenging the ruling, including asking the same panel to reconsider or seeking a discretionary review by the Supreme Court.
My take: Give it up, Fidell. The guy is a confessed deserter.
He pleaded guilty to that and, even worse, misbehavior before the enemy. He got
what he deserved. The prosecution wanted 14 years of incarceration at the U.S.
Military Disciplinary Barracks at Fort Leavenworth, Kansas. I was among those who
supported the dishoorable discharge and the non-custodial sentence. His five years at the hands of the
Taliban were enough punishment, albeit self-induced. It’s over – move on.
ADDENDUM: When Bergdahl was returned to American control, I was a military analyst for CNN. As such, I was interviewed extensively about this case, and wrote several articles detailing my personal views and analysis (see links below). I stand by every word.
The Bowe Bergdahl exchange - a mixed blessing (June 1, 2014)
The Bergdahl court-martial recommendation - has someone leaned on the Army? (October 12, 2015)
Bergdahl - the Army does the right thing (March 25, 2015)
Bergdahl - the deflective media campaign begins (March 28, 2015)
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* Personal note: Shortly after I was commissioned, I was selected to be a
member of a general court-martial panel. I was ordered to present myself to the
military judge (in this case, a USAF colonel). The defense counsel took one
look at me, called for a pre-emptory challenge, and asked that I be excused. I
was dismissed without saying a word, no explanation other than, “Thank you,
Lieutenant, you are excused.”
I asked a mentor, a USAF colonel,
what happened. He asked about the case. A staff sergeant had killed his five-year
old son in base housing and was being charged with murder. The local police in
Denver, Colorado, wanted no part of it – let the Air Force figure it out.
The colonel explained: "You showed up as required in full service dress ('dress blues') which requires all awards, decorations, and badges to be worn. The defense counsel, also a USAF officer, read your ribbons – he saw a prior service NCO, aircrew wings, nine Air Medals, Vietnam campaign medals – you are the last person he wants judging his NCO client. “
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