Of the two charges preferred against Sergeant Bergdahl, the first is desertion. But the desertion charge against Bergdahl is special. It does not allege that Bergdahl left his unit with the intent to remain away permanently – a typical desertion charge and a violation of Article 85(a)(1). Rather, it alleges that he left his unit “with the intent to shirk important service and avoid hazardous duty” – a less common violation of Article 85(a)(2):

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 85
SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.

(emphasis added).

Article 85 of the UCMJ is based in part on Article 28 of the Articles of War, which was modified in 1920 to include the language that is now found in Article 85(a)(2). See 41 Stat. 787 (1920). An early case decided by the Court of Military Appeals provides meaningful context:

Desertion with intent to avoid hazardous duty – by its very terms – connotes an absence without leave the prompting for which is a specific intent entertained by the offender to avoid the hazardous duty present or in prospect. As a matter of law, the offense is not committed by reason of a naked unauthorized absence, without more, from a unit engaged in hazardous duty. . . . In terms of legal distinction it is manifest that desertion with intent to avoid hazardous duty is not identical with absence without leave from a unit engaged in hazardous duty. Instead, the entertainment of a particular purpose lies at the very heart of the desertion offense.

United States v. Apple, 10 C.M.R. 90, 91 (C.M.A. 1953) (emphases omitted). And so, to convict Sergeant Bergdahl of the charged offense of desertion, the Government needs to prove that he had the specific intent to either avoid hazardous duty or to shirk important service, such duty or service being “combat operations,” “guard duty,” or “combat patrol duties.”

To this end, however, Bergdahl’s own words may doom him. This CNN report states that:

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.

And Bergdhal’s attorneys sent a letter on March 2, 2015, asserting that:

While hedging its bets (n.347), the [Army’s investigative] report basically concludes that SGT Bergdahl did not intent to remain away from the Army permanently, as classic “long” desertion requires. It also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.

Letter at 7 (pages unnumbered numbered at the top; see linked PDF at 8). Of course, it is meaningless that Bergdahl did not intend to remain away permanently. Bergdahl is charged with so-called “short” desertion, not “long” desertion. See Alfred Avins, A History of Short Desertion, 13 Mil.L.Rev. 143 (1961) (available here).

Yet if Bergdahl truly intended to make a report to the nearest general officer (after traversing southeastern Afghanistan alone, on foot, and seemingly unarmed), that doesn’t prevent a conviction for desertion. In fact, it might guarantee his conviction, because Bergdahl will be deemed to have intended the natural and probable consequences of his actions, and his ulterior motives are likely irrelevant.

Consider the prosecution of a Desert Shield era objector in United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995), cert. denied, 116 S.Ct. 922 (1996). Captain Huet-Vaughn joined the Army Medical Corps in 1990. In December of that year she was informed of her impending deployment in support of Operation Desert Shield. But Captain Huet-Vaughn did not support American involvement in the Persian Gulf, and so she deserted. Specifically:

CPT Huet-Vaughn did not contest the fact that she intentionally quit her unit with knowledge that it was about to deploy to the Persian Gulf. The evidentiary contest arose from her desire to introduce evidence of her motives and reasons for refusing to support Operation Desert Shield. She tendered several reasons: that war crimes would be committed, that the war would be an environmental catastrophe, and that support of the war would be morally and ethically wrong. The defense conceded at trial that service in the Persian Gulf was hazardous duty and important service. The sole factual issue was CPT Huet-Vaughn’s intent when she went AWOL.

43 M.J. at 113. At trial, the military judge limited Captain Huet-Vaughn’s testimony about her motives; she was only permitted to testify:

[T]hat it was not her intent to avoid hazardous duty or shirk important service. On cross-examination she testified that she left her unit to “educate and expose the nature of what” was happening. On redirect, she testified that she “chose to–to perform what I considered a more important service to–to the American public and to try to educate it regarding the information that I had gathered and the catastrophic nature of what was happening.” Finally, she was allowed to testify that her “intent was to do what I could to prevent the war from starting.”

43 M.J. at 113. She was convicted of desertion and sentenced to confinement for 30 months, total forfeitures, and dismissal from the service.

Affirming that conviction, CAAF found that all of Captain Huet-Vaughn’s reasons for refusing to deploy were irrelevant:

To the extent that CPT Huet-Vaughn quit her unit as a gesture of protest, her motive for protesting was irrelevant. . . .

To the extent that CPT Huet-Vaughn quit her unit because of moral or ethical reservations, her beliefs were irrelevant because they did not constitute a defense. . . .

To the extent that CPT Huet-Vaughn quit her unit because she felt it was necessary to avoid a greater evil, the proffered evidence was irrelevant because it did not support a “necessity” defense. . . .

To the extent that CPT Huet-Vaughn’s acts were a refusal to obey an order that she perceived to be unlawful, the proffered evidence was irrelevant. . . .

Finally, to the extent that CPT Huet-Vaughn intended to contest the legality of the decision to employ military forces in the Persian Gulf, the evidence was irrelevant, because it pertained to a non-justiciable political question.

43 M.J. at 114-115. So too, one imagines, will be the case with Sergeant Bergdahl’s purported intent to report allegations of wrongdoing. His desire to make such a report (and its intended contents) is not evidence that he intended to avoid hazardous or important duty, nor is it evidence that he did not intend to avoid hazardous or important duty.

Notably, in affirming the conviction in Huet-Vaughn, CAAF noted that it is enough that a deserter knows or should have known that his absence would cause him to miss hazardous or important duty:

It is enough, we hold, that in a case of this nature a court-martial determine on the basis of substantial evidence that the duty was imminent, and that as a consequence of his unauthorized absence the accused in fact avoided it or had reasonable cause to know that he would do so.

Huet-Vaughn, 43 M.J. at 115 (quoting United States v. Shull, 2 C.M.R. 83, 80-89 (1952)). In Schull the court also noted that “one in the position of such an accused will be deemed to have intended the natural and probable consequences of his actions.” 2 C.M.R. at 89.

So too with Sergeant Bergdahl. It’s somewhat impossible to conclude that Bergdahl didn’t know that his departure would, naturally and probably (and even inevitably), result in him missing combat operations, guard duty, or combat patrol duties. One simply does not walk off into the Afghan wilderness, and then return to duty as if nothing happened (of course, Bergdahl’s capture intervened).

And so the question is: What did Sergeant Bergdahl actually tell the investigators? If he said that he left to find a general officer, and he acknowledged that he knew that his departure would cause him to be removed from further combat operations with his unit (such removal perhaps even forming the basis for seeking out a general officer), then that’s a confession to desertion. A strong confession, I think (though confessions are the least reliable form of proof known to the law).

Notably, Sergeant Bergdahl won’t be able to claim that he was just a whistleblower because of the element that he “quit his post.” Bergdahl’s admissions (as reported) concede that he actually did quit his post, and the letter from his attorneys doesn’t seem to dispute that point.

Perhaps we’ll get some answers at the Article 32.

19 Responses to “Did Sergeant Bergdahl confess to desertion?”

  1. Huig de Groot says:

    Depending on what Sergeant Bergdahl was going to report, it seems to me there may be a justification or necessity defense. It would certainly depend on what facts come out. From the Army’s  Practicing Military Justice:
    United States v. Roberts, 14 M.J. 671 (N.M.C.M.R. 1982), rev’d, 15 M.J. 106 (C.M.A. 1983) (summary disposition) (duress available to female sailor who went AWOL to avoid shipboard initiation when complaints about harassment went unheeded); see also United States v. Tulin, 14 M.J. 695 (N.M.C.M.R. 1982) (informant felt Navy could no longer protect him); United States v. Hullum, 15 M.J. 261 (C.M.A. 1983) (racial harassment).
     
     
     

  2. stewie says:

    huh?  I don’t see how you connect “I’m leaving to go report allegations of wrongdoing” to mean “I know that by doing so I will miss combat operations, or guard duty, or combat patrol duties.”  Now, the panel may conclude that his reasons for leaving were unjustified (or simply disbelieve him) and thus find that he deserted but I don’t see that remotely as a confessions either intentionally or unintentionally.  Or as noted by the vaguely Guardians of the Galaxy character post above, they may grant or deny him a justification or necessity defense.
     
    But in reality, this was always going to be about what reason Bergdahl gave for leaving, what his intent was, and what, if any, duties he missed…but this isn’t the same as Huet-Vaughan.  Going to report misconduct is not the same as leaving and basically saying this war is wrong, I’m out.  The latter is unequivocal shirking of any and all duties, the former is not.  Now, the reasoning Bergdahl gives may end up to be redonkulous and unbelievable, but he could say, for example…
     
    I thought it would take me a day to get to X…I wasn’t on guard duty that I knew of and there were no planned missions in the time I thought it would take me to get to X…along the way to X, I was captured by terrorists.  I don’t think that’s a confession.  It might be unbelievable, but it’s not a confession. 

  3. Burt Macklin says:

    Stewie:
    The OP can feel free to correct me but based on the spelling I think that nom de guerre is a reference to the Dutch legal scholar and not the sentient tree voiced by action superstar Vin Diesel. 

  4. stewie says:

    Speaking of jokes falling flat!

  5. Zachary D Spilman says:

    I think you miss my point, stewie. Even if Bergdahl did intend to make a report, and that intent is relevant, he still quit his post under circumstances where the natural and probable consequences of his actions were that he would miss important service and hazardous duty (consequences he may even have acknowledged in his statements to investigators). That will sustain a conviction under the holding enunciated in Shull and ratified in Huet-Vaughan:

    [W]e do not mean to enunciate a rule necessarily requiring in such a situation that a court-martial conclude that an accused’s primary motive must have been to avoid the important service or the hazardous duty alleged. It is enough, we hold, that in a case of this nature a court-martial determine on the basis of substantial evidence that the duty was imminent, and that as a consequence of his unauthorized absence the accused in fact avoided it or had reasonable cause to know that he would do so. Since on in the position of such an accused will be deemed to have intended the natural and probable consequences of his actions, we cannot in propriety complain if a court-martial regards primacy among motives as unimportant.

    2 M.J. at 88-89. See also United States v. Gonzalez, 42 M.J. 469, 473-474 (C.A.A.F. 1995) (discussing Shull).

    As for the defense of duress, Huig de Groot, I think it unlikely to apply in this case:

    (h) Coercion or duress. It is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.

    Rule for Courts-Martial 916(h) (emphasis added). There’s a nice discussion of the defense of duress in United States v. Vasquez, 48 M.J. 426, 429-431 (C.A.A.F. 1998), where the court noted that:

    RCM 916(h), Manual, supra, recognizes duress as a defense, but it demands that certain factors be met before it is applied. The defense of duress applies when the accused has a (1) “reasonable apprehension” that (2) “the accused or another innocent person” would (3) “immediately” suffer death or serious bodily injury if the accused “did not commit the act.” Id. A “reasonable apprehension” does not exist “[i]f the accused has any reasonable opportunity to avoid committing the act without subjecting [himself] or another innocent person to the harm threatened[.]” Id. When there is “some evidence” of the defense, “the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.” RCM 916(b).

    48 M.J. at 431. Considering these requirements for a duress defense, the following language from the letter from Bergdahl’s attorneys seems particularly significant:

    [T]he [Army’s investigative] report makes it clear that SGT Bergdahl is a truthful person, albeit a naive and at time unrealistic one.

    Letter at 6. Even if Sergeant Bergdahl was trying to address a threat of immediate death or serious injury (and I’ve seen no indication that he was), he naivete and lack of realism stand in stark contrast to the objective standard of a “reasonable apprehension” required for a duress defense.

  6. stewie says:

    Then your point doesn’t match up with your title.  All you’ve done is laid out what the government has to prove.  And while probable, it’s not a guarantee that the natural and probable consequences are that he shirked important duty.  That’s what the government will have to prove BRD.  We know he left.  His stating the reasons why he left doesn’t convert it into a confession.  Now, yes IF he said in his confession, yes I know there was important duty coming up, but I left anyways, sure that would be a confession…but simply saying I left to report abuse or what have you, is not, by itself, enough for the government to win.
     
     

  7. TBecket says:

    Unless SGT Bergdahl can prove that his plan only required a small distance to travel, the inevitable consequence will be that he knew he was going to be unavailable for duty.  SGT Berdahl and his team will want to make this all about his plan to act justly, but that intent won’t matter on the merits as was the case in another high profile Army court-martial.

  8. Lyle Sanders says:
  9. k fischer says:

    Since he deserted his unit, I hope they don’t make Soldiers at his OP who are the victims in this case testify and be subjected to hours of victim blaming cross examination.  Has the Army given them attorneys?  Since 2002 there has been an epidemic of AWOL and desertion in the military where when the crime is committed the whole unit is the victim.  These victims need protection.  

  10. Former Trooper says:

    Huet-Vaughn was wrongly decided, and should be overturned.  Desertion is, and has always been, a specific intent crime.  Allowing the government to fall back on an accused “intending the natural and probable consequences” does violence to that real distinction.  Assault is a general intent crime, and you are guilty if you flail your arms around and happen to hit someone.  But assault with the intent to cause serious bodily harm means you have to have that intent.  Bergdahl is a jerk.  But the Government should have to prove he intended to shirk or avoid hazardous duty before he is found guilty of specific intent desertion.  It is simply ridiculous to state that motive is irrelevant to a specific intent crime.  That can’t be true.

  11. Zachary D Spilman says:

    CAAF would have to overturn a whole lot more than Huet-Vaughn to adopt your reasoning, Former Trooper, and ignore the natural and probable consequences of walking off into the Afghan wilderness.

    Consider a homicide prosecution: 

    We have observed that a court may find specific intent to kill from the “high risk of homicide” accompanying a defendant’s actions and an inference that the defendant “intend[ed] the natural and probable consequences of … [his] acts….”

    United States v. Willis, 46 M.J. 258, 261 (C.A.A.F. 1997) (quoting United States v. Roa, 12 M.J. 210, 211 (C.M.A. 1982)) (emphasis added). See also MCM, Pt. IV, ¶ 43.c.(3)(a) (“It may be inferred that a person intends the natural and probable consequences of an act purposely done. Hence, if a person does an intentional act likely to result in death or great bodily injury, it may be inferred that death or great bodily injury was intended.”).

    Whether Bergdahl intended to make a report, find some puppies, get a kabob, or just do some exploring, is irrelevant. What matters is that he has confessed to quitting his post under circumstances where a long absence was practically guaranteed.

     

  12. Advocaat says:

    @Former Trooper and @stewie hit the target regarding specific intent and that there is a lot of room to maneuver within the differences between this case and Huet-Vaughn–refusing to deploy is distinguishable from wandering into enemy territory on a bizarre, unauthorized “mission” if we are to believe the defense’s outline to date.  If the defense thinks the government will perfect its case with additional charges at the 32 and that a court is inevitable, they should waive the hearing and demand a speedy trial.

  13. Zachary D Spilman says:

    [P]erhaps the oldest rule of evidence — that a man is presumed to intend the natural and probable consequences of his acts — is based on the common law’s preference for objectively measurable data over subjective statements of opinion and intent.

    United States v. Falstaff Brewing Corp., 410 U.S. 526, 570 n.22 (1973) (Marshall, J., concurring in result).

  14. Former Trooper says:

    I am not arguing that the principle has no application, I am saying that if you allow all proof of specific intent to be satisfied by pointing to that same tautology, then the distinction disappears.  
    Let’s say an E-5 leaves his post without permission because he heard that a band of Taliban was planning to murder a kindergarten full of children.  He tells his chain of command and asks that the unit do something.  They say no.  He disobeys a direct order, and leaves the FOB, armed, in order to protect the children and fight that Taliban.
    Under my charging theory, that is Failure to Obey a Lawful Order, but not desertion.  Under yours, because the natural and probable consequence of leaving your unit while they are performing hazardous duty is that you miss the hazardous duty, your specific intent must have been SPECIFICALLY to shirk that duty.  But it cannot be argued in any sane fashion that my misguided Soldier is trying to shirk hazardous duty.  Motive and intent are not unrelated as a matter of logic or common sense, and motive must inform the intent analysis of specific intent crimes.  

  15. stewie says:

    I think the problem here is the “may” language.  Yes, if it becomes wildly apparent to the panel that Bergdahl had to have known there was an imminent hazardous/important duty for which he was needed, and that by leaving, he was going to miss/shirk it, then it won’t matter what reason he gives for leaving (short of I suppose “I was going out fear of death to myself or someone else”).
     
    However, if it is more about…Bergdahl was not due to go on a mission for 24-48 hours, the place he was going was 3 hours away, and then he’s captured, I think it falls back on the government and he hasn’t “confessed” away by admitting he left voluntarily.  Put another way, if he stepped out the wire to pet a dog, then was immediately captured, I suspect a panel would have a hard time convicting him of desertion.  An extreme example, but one could argue any unauthorized movement outside the protection of the base has a “natural and probable consequence of capture.”

  16. Zachary D Spilman says:

    Let’s say an E-5 leaves his post without permission because he heard that a band of Taliban was planning to murder a kindergarten full of children.  He tells his chain of command and asks that the unit do something.  They say no.  He disobeys a direct order, and leaves the FOB, armed, in order to protect the children and fight that Taliban.

    Everything after “leaves his post without permission” is relevant only for sentencing, Former Trooper.

    However, if it is more about…Bergdahl was not due to go on a mission for 24-48 hours, the place he was going was 3 hours away, and then he’s captured, I think it falls back on the government and he hasn’t “confessed” away by admitting he left voluntarily.  

    I don’t know what you mean by “go on a mission,” stewie, but the charge is that he missed “combat operations,” “guard duty,” or “combat patrol duties.” Presumably the Government can prove that.

    I do agree that the analysis is different if Bergdahl only intended to travel a short distance, however it’s different because the natural and probable consequences of traveling a short distance don’t include the absence with which Bergdahl is charged. Put differently, had Bergdahl merely abandoned his post to take a shower, that abandonment wouldn’t be a prima facie case of desertion.

    However, the CNN report that 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,” is a prima facie case of desertion. In other words, he confessed.

  17. stewie says:

    I just fundamentally disagree with that.  It isn’t a prima facie case of desertion.  What if he’d been told, you are off for the next 72 hours?  How did he miss combat operations? What duty did he shirk?  What is a “short distance?”  What if the base he intended to go to was an hour away? 15 minutes? Is there a short distance cut-off?
     
    Why should a short distance matter versus some other difference?
     
    I hope the government, if they want to do this correctly, is not taking the tack that Bergdahl has basically confessed.  They need to do more work than that to be sure.

  18. Lyle Sanders says:

    More Bergdahl coverage from the network Eugene Fidell refuses to name, but as he puts it, “we all know who we’re talking about”:
    http://video.foxnews.com/v/4159657529001/more-embarrassment-for-the-obama-admin-over-bowe-bergdahl/#sp=show-clips

  19. Former Trooper says:

    Zach – 
    You are completely avoiding the issue by citing to existing precedent.  Please understand, I am not arguing that as a matter of current military jurisprudence my hypothetical supports a finding of not guilty.  I am saying as a matter of common sense, moral philosophy, and the legal tradition, it cannot be the case that general conclusions regarding intent can always support specific intent crimes, or put another way that motive is always irrelevant.  You’re tautological insistence as to what is relevant under current jurisprudence does not address the issue.
    The natural consequence of shocking someone in the chest with intense electric current is grievous body harm.  But assault with intent to cause grievous bodily harm is a specific intent crime.  Is it your argument that if I, as a bystander that saw someone having atrial fibrillation, took down a defibrillator and shocked his chest I am prima facie guilty of assault with the intent to cause grievous bodily harm?  
    Motive and intent are not two distinct concepts.  They both describe components of the mental state of an actor.  We have, over several hundred years, determined to call intent “motive that the legal system cares about.”  If we are going to have specific intent crimes there must be a different way to analyze the requisite intent over general intent crimes, and to say that “people generally intend the natural consequences of their actions” is circular and, frankly, dumb.