October 12, 2015

The Bergdahl court-martial recommendation - has someone leaned on the Army?

Still from a Taliban video of Bergdahl's release in 2014

From recent reports, it appears that the U.S. Army will not try accused deserter Sergeant Bowe Bergdahl in a general court martial. According to a statement from Bergdahl's civilian lawyer, the presiding officer at the Article 32 hearing will recommend to the general in charge of Bergdahl's case that the sergeant be tried by special court martial, a lower level court for what are equivalent to misdemeanors in the civilian justice system. If Bergdahl's lawyer is correct, the presiding officer will also recommend that the sergeant not be subjected to confinement or given a punitive discharge from the Army.

I wish I could say that I am surprised at the recommendations made by the Army lawyer, but given the politicization of this case by President Obama and his national security advisor, it is inevitable that Bergdahl will get special treatment. There were two major clues that this Administration has no interest in holding Bergdahl accountable for his alleged crimes.

The first was the spectacle of President Obama hosting Bergdahl's parents in a Rose Garden ceremony at which he announced the release of five of the most senior Taliban detainees in U.S. custody in exchange for the return of their son. This ill-advised deal and public ceremony has set the tone that will influence any future prosecution of the soldier.

The President's remarks seemed to paint Bergdahl as a hero rather than a soldier later accused of desertion. It is inconceivable that the President - he is the Commander in Chief of the armed forces - was unaware of the circumstances of Bergdahl's disappearance from his unit at a forward outpost in Afghanistan.

The second event was a series of appearances by National Security Advisor Susan Rice on the Sunday talk shows. Her repeated claim that Bergdahl "served the United States with honor and distinction..." again set the stage for either no or only low-level prosecution.

In March of this year, I wrote an article lauding the U.S. Army's decision to bring charges against Sergeant Bergdahl. I was pleased that despite the unwarranted influence exerted by President Obama and Ms. Rice, the Army did the right thing. The Army charged Sergeant Bergdahl with desertion and misbehavior before the enemy, both very serious crimes. (See the entire article: Bergdahl - the Army does the right thing.)

Even as the Army formalized the charges against Bergdahl, Bergdahl's lawyer, Eugene Fidell, began the litany of excuses and rationale behind Bergdahl's actions. No one contests the fact that he left his unit in Afghanistan, but the fantasies that Fidell puts forth are almost laughable. Fidell is an excellent lawyer; he is doing his job.

Bergdahl claims that he wanted to call attention to what he considered the poor leadership of his unit by leaving his observation post and running almost 14 miles to a larger base in order to lodge a complaint. I suspect Fidell sensed that the Administration wants this case to go away, and crafted a narrative that would lead to lesser or even no charges. This in turn saves the President any embarrassment based on his Rose Garden theatrics.

A few weeks after I wrote the first article and I began to see Fidell's plan to create an alternate reality, I wrote a second article in which I said: "I also hope that the Administration will not put pressure on the Army to dismiss the case in the wake of the White House's two public relations blunders - the Rose Garden ceremony with the President and Bergdahl's parents, followed by National Security Advisor Susan Rice's blatantly false claim that Bergdahl 'served the United States with honor and distinction.'" (See the entire article: Bergdahl - the deflective media campaign begins.)

I still had hopes that the Army would continue to do the right thing and fully prosecute Bergdahl. Let him have his day in court - let him explain to a general court martial why he left his unit while assigned to an outpost in Afghanistan. Have Bergdahl explain the series of emails and communications with his father that may have encouraged his decision to leave his post.

Let the government put on its case, call all the witnesses who were at that same outpost and hear their recollections of what happened, not what Bergdahl's lawyer would have us believe.

Let the officers impaneled to hear the case decide if Bergdahl was justified in leaving his comrades in a combat zone. If they find him guilty of the charges, the court can take into consideration the fact that he was a prisoner of the Taliban for five years when determining an appropriate punishment. I know there are many veterans who believe Bergdahl should serve a life sentence; I believe he has suffered enough for his decision to leave his post.

That said, I still want him to stand up in a U.S. Army court martial and be held accountable for his actions. If found guilty, I believe he should be given a less than honorable discharge from the Army and if possible, enjoined from profiting from his errors in judgment - no profits from a book or movie rights, etc. I personally have no desire for him to be incarcerated, but I do not want him wearing a U.S. military uniform or enriching himself based on criminal behavior.

When I heard Fidell's announcement about the recommendations that will be made as a result of the Article 32 hearing, I was disappointed. Then it got worse - Fidell complained about the recommendation for even a special court martial, advocating instead for an even less serious Article 15 proceeding, considered in the military as nonjudicial punishment, in other words, not a formal court martial.

I was stunned - Article 15's are given for minor infractions, like missing a formation or instances of being late for work. An Article 15 is not appropriate disciplinary action for leaving a post in a combat zone.

The presiding officer also recommended that Bergdahl not be subjected to a punitive discharge, meaning that he would retain all benefits afforded veterans who have served honorably. These include access to all Veterans Administration benefits - disability pay, medical care, etc. That too flies in the face of the serious nature of the charges. If found guilty - and that now appears to be a big if - in a special court martial, Bergdahl could face one year in confinement and a bad conduct discharge.

This is not the last word. The recommendations for a special court martial and the call for no jail time or punitive discharge are just that - recommendations. The final decision will be made by General Robert Abrams, commander of U.S. Army Forces Command, the court martial convening authority. The general can accept or reject any or all of the recommendations.

It is hard to imagine that this case is being conducted without what is called in the military "undue command influence." It began the day Bergdahl was released and continues to this day. Maybe I am being naive, but I still have hopes the Army will do the right thing - convene a general court martial and give this case the gravity it deserves.

Bonus: My CNN interview on this issue (with Poppy Harlow, October 10)