In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees that a report by the House Armed Services Committee found violated several laws. Ten months later, in March of 2015, now-Sergeant Bergdahl (who was promoted while in captivity as if he were a prisoner of war) was charged with desertion and misbehavior offenses, his case was referred for trial by general court-martial, and last week Bergdahl elected to be tried by a court-martial composed of a military judge alone.
As the case progressed some wondered why Bergdahl is being prosecuted after nearly five years of captivity in the hands of insurgents. The facts of his capture are relatively undisputed; in a moment of severe naivete (or maybe narcissism) Bergdahl walked away from his combat outpost and into the Afghan wilderness. The subsequent half-decade of maltreatment he suffered is undoubtedly a harsh price to pay for his terrible decision. Nevertheless – and despite the recommendation of the Article 32 preliminary hearing officer that Bergdahl face a lesser, special court-martial not authorized to adjudge a punitive discharge – Bergdahl will soon be tried by a general court-martial where he faces the possibility of a dishonorable discharge and confinement for as long as life without the possibility of parole.
Bergdahl’s decision to be tried by a military judge alone rather than a panel of members came after a year of litigation about comments made by President Trump during the campaign (as well as comments by others) that Bergdahl’s defense counsel claimed make it impossible for Bergdahl to receive a fair trial. A judge-alone trial likely waives that issue, and almost certainly cures it. It’s a surprising gift to the prosecution in a case with seemingly-overwhelming evidence, including that Bergdahl probably confessed to the desertion offense, and his post-recovery statements to film producer Mark Boal are probably a confession to the misbehavior offense as well.
One possible rationale for the decision to elect trial by a military judge alone is that a military judge will give Bergdahl credit for his time in captivity, at least by considering that time as a significant mitigating factor. This, of course, assumes that Bergdahl is guilty. But assuming that he is guilty of the desertion and misbehavior (or either) offenses that led to his capture, it’s not at all clear that his captivity mitigates his misconduct. Rather, I think there’s a stronger argument that Bergdahl’s captivity is a matter in aggravation.
A court-martial conducts sentencing as a second phase of the trial, with the finder of fact also serving as the sentencing authority, no sentencing guidelines, and the same overall rules of procedure and evidence as those used in the guilt or innocence phase. A court-martial picks a sentence based on the evidence presented during the trial, the maximum authorized punishment for the offense(s), the accused’s service record, prior offenses, and rehabilitative potential, and any matters in extenuation, mitigation, and aggravation. See R.C.M. 1005(e)(5). Matters in extenuation, mitigation, and aggravation are defined as:
Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense.
Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse.
R.C.M. 1001(c)(1)(A); and
Matter in mitigation of an offense is introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency. It includes . . . particular acts of good conduct or bravery and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a servicemember.
Bergdahl’s captivity was, by any measure, brutal. But it was the direct (and foreseeable, if not obvious) consequence of him leaving his post, which is the basis for the charges. Put differently, assuming that Bergdahl is guilty, his captivity was his own fault. And we rarely treat the direct consequences of a person’s own misconduct as a matter in mitigation of that very misconduct.
Consider the hypothetical case of a woman convicted of murdering her husband. It’s not mitigating that she is now a widow. Or the case of a drunk driver who hurts someone. It’s not mitigating that he also hurt himself. Or a service member who begins using illegal drugs recreationally. It’s not mitigating that he developed an addiction. Bergdahl’s case may be no different.
It is in this context that the decision to elect trial by military judge alone is most puzzling. Just imagining five years in Taliban captivity, it’s easy to feel pity for Bergdahl. But a military judge will understand technical limits of mitigation evidence better than members, and (I think) be less likely to let an emotion like pity creep into the case.
As for a matter in extenuation, Bergdahl’s captivity isn’t that. It doesn’t explain the circumstances surrounding the commission of any offense because he was captured after he committed either offense.
But it’s awfully easy to blur the line between a matter in mitigation and a matter in extenuation. In fact, it already happened in the Article 32 preliminary hearing in Bergdahl’s case. In his report (available here), the preliminary hearing officer, Lieutenant Colonel Visger, explained that “trial counsel argued that [Bergdahl’s captivity] conditions were not relevant because they were the direct result of the accused’s own crimes.” PHO report at 4. Lieutenant Colonel Visger agreed with this argument, but only “to a point,” because he found that “SGT Bergdahl deserted for good motives.” Id. And so he concluded:
Because SGT Bergdahl deserted for good motives, I believe that the disposition authority should not summarily dismiss the atrocities suffered by SGT Bergdahl and that the conditions of captivity should be properly considered in determining a disposition to this case.
PHO memo at 4. Yet Bergdahl’s motives (good or bad) are a matter in extenuation because they explain why he did what he did, while his captivity is (at best) a matter in mitigation. Lieutenant Colonel Visger’s conclusion and recommendation blurred the line between the two.
But even if I’m wrong and Bergdahl’s motives before deserting make his captivity after deserting a matter in mitigation, the purity of Bergdahl’s motives is anything but clear. Rather, Bergdahl’s statements to Boal – broadcast to the world by NPR’s Serial podcast – suggest that his motives were not good:
I was trying to prove to myself—I was trying to prove to the world, to anybody who used to know me—that I was capable of being that person.
Like a super-soldier, you mean.
Yeah. I was capable of being what I appeared to be. Like, doing what I did was me saying, I am—
—like I don’t know, Jason Bourne.
Serial Podcast, Season 2, Episode 01: DUSTWUN (link to transcript). And as bad as this statement is on its own, the fact that it was made to a movie producer during a series of recorded interviews suggests that Bergdahl is still trying to prove his true capabilities to the world.
There’s also the undeniably aggravating factors, such as the cost of Bergdahl’s captivity to the United States (in manpower, treasure, diplomatic favor, and maybe even security). The producers of the Serial Podcast did what they do best; they found, interviewed, and produced powerful narratives about the soldiers who served with and searched for Bergdahl. Those stories are a devastating blow to Bergdahl’s defense.
All told, there are a lot reasons to consider the fact and circumstances of Bergdahl’s captivity as more aggravating than mitigating.