Click read more to see video of the Army’s official statement.

35 Responses to “Bergdahl charged, Article 32 preliminary hearing planned”

  1. Advocaat says:

    Here is a link to The NewsHour’s interview of Eugene Fidell regarding this case.  In my view, the strategic messaging score remains tied 0-0.

  2. wowzers says:

    i don’t believe I’ve heard the reason Mr. Fidell volunteered to represent Bergdahl. Doesn’t matter. I’m just curious, for some reason. 

  3. JTS says:

    Well he does get to test out the new procedures for an Article 32 “Preliminary Hearing…”

  4. stewie says:

    This might be a case where the 32 could look more like the old 32 for reasons both sides might want.

  5. (Former) ArmyTC says:

    The defense requests in-person production of Harry Haqqani, whose testimony is necessary, not cummulative, and relevant to the limited scope and purpose of the hearing.

  6. Gordon Smith says:

    In news accounts, Army officials are saying that Bergdahl could face life in prison. I also  know there is a cap on the desertion count-it’s only five years maximum for confinement,-but the count for misbehavior before the enemy is potentially punishable by death even in peacetime. Has a decision already been made to refer the case as non-capital?  Doesn’t the general court-martial convening authority make the decision on capital or non-capital when he refers the case to trial after the Article 32 hearing? l?

  7. stewie says:

    There is no way the DP was or is even remotely a consideration.

  8. Lieber says:

    Gordon Smith:
    For a variety of reasons, as a practical matter the DP decision is always made at the preferral stage with second bite at the apple at the referral stage.

  9. Charlie Gittins says:

    Just guessing, but even though statute provides DP as a possible punishment, I doubt the DP would survive appeal where he didn’t actually kill someone as a part of the alleged “misbehavior before the enemy.”  The Supremes DP alley is pretty narrow these days. 

  10. k fischer says:

    Anybody know if the case will be tried at Bragg if it gets referred?  Also, what was his misbehavior from the Article 99 charge?  The Desertion could be a lesser included of misbehavior, depending on which act of misbehavior the Government alleged.

  11. Viper6 says:

    Were any Soldiers wounded or killed while searching for this deserter?

  12. stewie says:

    I’ve seen no evidence that Soldiers were wounded or killed while directly looking for Bergdahl.  In fact, my understanding is that they were more or less told to keep an eye out for him while on regular missions, not that they were specifically going out and looking for him as a primary mission.  But that’s just what I get from reading up on this, I don’t have any inside info.

  13. anon says:

    Stewie, I have no clue about the facts (pretty sure the 15-6 addresses this with more knowledge than Fox or NYT).  Assuming the facts (that servicemembers were injured or killed while searching for SGT Bergdahl (and he was convicted of solely desertion), would this evidence be admissible as aggravation under RCM 1001(b)?  This is being played out in the media without much analysis. 
    FYI,  NYT yesterday quoted “military legal experts” as not recalling CM for Article 99.  I believe  SGT Charles Jenkins (desertion to N. Korea) was tried and convicted of Article 99 in the mid-2000s.

  14. Gordon Smith says:

    anon, Jenkins was convicted of aiding the enemy (and I think, desertion as well. As for the ”military legal experts” not recalling a CM for Article 99, there was at least one in the modern era, U.S. v. Thomas H. King (2006), which involved a Marine lance-corporal. in Iraq. It was tried by special court-martial.

  15. J.M. says:

    Setting aside (but not forgetting) anyone that may have been killed or injured looking for him, what legal repercussions could Bergdahl face for Soldiers injured or killed during the same time frame where the Gov alleges that an asset that could have mitigated risk such as UAS, aviation lift or CAS bird was re-prioritized for the Berghdahl search, and thus unavailable, resulting in casualties? 

  16. Gordon Smith says:

    And to answer a question posed by  k fischer, Bergdahl was charged with ”One count of misbehavior before the enemy by endangering the safety of a command, unit or place.” It will be very interesting to see the specification (s) for this charge.

  17. stewie says:

    I don’t see how such a tenuous link can be placed on Bergdahl (the re-tasking of air assets that might have helped somewhere else on the battlefield).  It’s one thing to say that if someone was directly searching for him and was injured that there is a causal link (although I’m skeptical).  It’s another to say every time some asset was re-prioritized however long down the road that is also tied to Bergdahl.  If that’s the case, I can imagine a whole slew of charges could have been filed.

  18. anon says:

    Mr. Smith, thank you for correction.  FYI, “Military legal experts” was not intended to be a question about their validity.  To the extent that this gets to trial, the level of publicity will provide a reference point for the general public’s understanding of the military judicial process (I’ve been asked about the case by multiple civilian attorneys . . . and my rusty knowledge is more dangerous than insightful). 

  19. J.M. says:


    Could it, theoretically, be attempted? I.e., SGT Smith in the neighboring province was killed in an attack, during which a UAS was not available due to retasking for the Bergdahl search, with evidence presented that in similiar situations having a UAS platform was SOP and had prevented attacks?

  20. stewie says:

    I don’t know what you mean by theoretically attempted.  I mean you are always going to have attorneys who see things differently.  Even with bright line rules.  Sometimes it works.  I’m sure the DC who challenged leaving off terminal element and was going up against decades of prior precedent was probably eye-rolled into near-oblivion, until he or she won, and now we have a completely different precedent now.
    So sure, it could be theoretically attempted, I’m just highly dubious it would be successful…however smarter (but less attractive) people on here may strongly disagree.

  21. Lyle Sanders says:

    Advocaat, thanks for the link to PBS vid, and I have to agree with you on the messaging score.
    When the interviewer asked if his client was guilty, an emphatic “No!” or a resolute “No comment…” might have been more appropriate and reassuring to the client than Fidell’s maniacal laughter.

  22. Viper6 says:

    Of course, the folks who generally are tasked with searching/rescuing a guy like this generally do so in secrecy.  Classified type stuff.  As for the disposition of this case, I frankly can’t believe the idea is being floated that this guy get’s a “no time” deal. 

  23. stewie says:

    Why can’t you believe that Viper6? He effectively spent 5 years in confinement far worse than anything we could come up with.

  24. Viper6 says:

    We’re supposed to take his word for his confinement conditions?  There’s a reason desertion during time of war has death as the max punishment.  It’s serious fucking business.

  25. stewie says:

    What reason do we have not to take his word?  What reason do we have not to believe that he was subject to harsh conditions?  If he’d truly “gone native” he would have been paraded/feted and treated like a hero by the Taliban.  There would have been videos.  And he wouldn’t likely have been part of a release.
    His claims, should he make them in open court, should be vetted and challenged like any others through cross examination.  But having said that, I see little reason to believe otherwise based on the current facts I have.  Nothing he says is contrary to what we know of the Taliban, or common sense, or logic. 

  26. DCGoneGalt says:

    Chutzpah:  After being convicted of murdering your parents, begging for mercy because you are an orphan.  
    If you walk off into Afghanistan what the hell do you think will happen?  Savage treatment is a probable consequence of wandering off to go tilt at windmills like a whistle-blowing Don Quixote.  If proven guilty, here’s to hoping the fact-finder doesn’t give him a sentencing chutzpah discount.

  27. stewie says:

    I’m going to guess since he did it once before and then came back with no repercussions, that he didn’t expect what happened to happen. So you think it’s chutzpah to take into account that he was captured and held hostage and the conditions of that chapter into sentencing??
    Yeah, I don’t understand that at all.

  28. DCGoneGalt says:

    Unsworn:  Oh, dear sentencing authority, I walked off into the peaceful environs of Afghanistan and was captured by barbaric 7th century savages. Show mercy upon me.
    Fact Finder:  You deserted/went AWOL in Afghanistan.  Were you expecting to file an IG complaint at the local Kandahar tribal meeting.  Fuhgeddaboutit!
    That is like a rapist askin for mercy after the victim beats him unconscious after he commits the act.  I am a fairly big defense person on due process and fairness issues but I hope a MJ or members laugh that argument off, as I hope they aren’t persuaded by the majority of  sentencing arguments that are variants on the “hard knock life” theme.
    You own the reasonable consequences of your actions. 

  29. JTS says:

    This might be of interest for those who have not yet seen it:

  30. stewie says:

    I don’t see five years of torture as a reasonable consequence.

  31. DCGoneGalt says:

    It is a foreseeable possibility if a US soldier wanders off in Afghanistan.  We travel in armed convoys because we haven’t won enough hearts and minds that Forrest Gump can just jog off to the next FOB to file an IG complaint.  It would be like wanting to run out for some fresh dates in Falluja in your pickup and then being amazed that some crazed insurgent group locked you in a basement and did a Marquis de Sade re-enactment on you.  IMO, only the willingly blind can’t see it.

  32. Saul says:

    @Stewie – five years of torture might not have been foreseeable.  Death seems far more likely.

  33. Advocaat says:

    Thank you, @JTS, for the link to the defense press release.  As an outside observer, what jumped out to me is that their strategy is not decisive and it helped explain The NewsHour interview performance of 25 March.  The large team of defense attorneys might take a cue from their client’s performance report at p.19 of the release, where it says he “take[s] responsibility for all actions.”  Right now it seems the defense is renting aspects of the wrongful nature of their client’s departure from his post when they should seize the initiative and own it, which would give them a stronger position from which to fight everything else.

  34. Just Another ADC says:

    The defense’s press statement has an interesting take on the UA duration issue, i.e., that “unauthorized” portion terminates upon capture by the Taliban.  This seems to make a lot of sense, but I haven’t looked into it. Almost an impossibility theory?

  35. stewie says:

    I would think so…I wanted to return, I was going to return, but I got captured and it was impossible for me to return.