The Army’s prosecution of Sergeant Robert Bowdrie (“Bowe”) Bergdahl (CAAFlog news page) for desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99, is an obvious choice for this year’s Top Ten list.
In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was subsequently captured by the Taliban and held in captivity 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 recently found “violated several laws.” Ten months later, in March of this year, Sergeant Bergdahl was charged with the desertion and misbehavior offenses. His case was recently referred for trial by general court-martial where he will face a maximum possible punishment of life without the possibility of parole.
These factors make Sergeant Bergdahl’s case worth of special attention, but it makes our Top Ten list because its processing through the military justice system is increasingly bizarre.
One significant aspect of the case is the lack of transparency, with the Army issuing a protective order to Sergeant Bergdahl and his defense team that prohibits them from releasing documents related to his case to the public and the press. I discussed that order in this post that also discussed the efforts of Bergdahl’s defense team to win relief from the order. Ultimately, however, the military appellate courts declined to get involved (as discussed here and here), and the order continues (for better or worse) to limit the ability of the defense to litigate the case in the court of public opinion.
Another bizarre aspect of the case is Sergeant Bergdahl’s own post-return statements that are – by any measure – increasingly and incredibly damaging to his defense. In this post published shortly after Bergdahl was charged, I discussed the possibility that his early statements regarding why he left his post amounted to a confession to the desertion charge:
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. 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.
Since then NPR’s popular podcast Serial announced that its second season is about the Bergdahl case, and we learned that he has made a great many more statements about his actions in 2009. Specifically, after he returned be began a dialogue with filmmaker Mark Boal. Boal recorded their conversations, resulting in roughly 25 hours of tape (according to the first episode of the season) (link to episode transcript). And included in those 25 hours is another damaging admission – Bergdahl deliberately intended to create a crisis with his departure:
[Voice of] Bowe Bergdahl: A man disappears from a TCP, and a few days later, after DUSTWUN is called up, he reappears at a FOB? Suddenly, because of the DUSTWUN, everybody is alerted. CIA is alerted. The navy is alerted. The marines are alerted. Air force is alerted. Not just army.
DUSTWUN is the radio signal for a missing soldier. The narrator – NPR producer Sarah Koenig – explains that:
[Bergdahl] was so alarmed by what he considered crappy and potentially dangerous leadership that he needed to act. He needed to let his command know at the highest levels.
[Begin audio clip of Bergdahl conversation with Boal]
Bowe Bergdahl: Now, as a private first class, nobody is going to listen to me.
Mark Boal: Of course.
Bowe Bergdahl: Nobody is going to take me serious if I say an investigation needs to put under way that this person needs to be psychologically evaluated.
Mark Boal: Right.
[End audio clip]
Sarah Koenig: Bowe’s solution is the DUSTWUN.
Deliberately causing a crisis in order to draw attention to oneself fits easily within the Article 99 offense of misbehavior before the enemy.
The damaging admissions continued through the first episode, with Bergdahl admitting that he had second thoughts after he left the outpost but rather than turn back immediately he formulated a plan to gather intelligence that might mitigate his own misconduct (a “bonus point” that would help him with the “hurricane of wrath” he would face upon returning to the outpost, according to the taped conversation). And the second episode piled on, giving a preview of the Government’s case in aggravation by describing the conditions suffered by the soldiers who searched for Bergdahl after he left his post:
People’s t-shirts got shredded. Their socks rotted. People got sores on their skin. They could only wash with baby wipes, and maybe bottled water.
Kenneth Wolf: Undergarments falling off of them.
Sarah Koenig: Oh, really?
Kenneth Wolf: Yeah. Clothes, like something you would think of in Malaysia or Burma, clothes just falling apart.
Sarah Koenig: That’s Ken Wolf, the Command Sergeant Major. The hard part was they hadn’t planned for this. No one knew how long the search was going to go on.
Kenneth Wolf: Yeah, eventually, because we had to start figuring it out. How are we going to rotate guys back in? How do we resupply them? Because they’re everywhere. Our guys are everywhere. They’re spread out everywhere. I mean, it was just complete—just a logistics nightmare.
And then, also, it wasn’t just our battalion. The other battalions within the organization were looking for him too. And so, you know, how does it make you feel when you’ve walked for 15 days straight looking for a guy who walked off, and he’s not even in your unit? And so you see somebody and they’re like, hey man, fuck you. We’re out here looking for this guy?
Bergdahl seems to have backed himself into a very tight corner.
Watching all of this is a deeply divided nation. The two presidential candidates with the highest poll numbers – Hillary Clinton and Donald Trump – have vastly different opinions on the deal that brought Sergeant Bergdahl home. Secretary Clinton has defended the deal, while Mr. Trump has called Sergeant Bergdahl “a no good traitor who should have been executed.” It’s hard to think of another case in the history of military justice that’s quite like this.
The story will continue in 2016, but for its developments so far the Bergdahl case is our #8 Military Justice Story of 2015.