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.

R.C.M. 1001(b)(4);

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.

R.C.M. 1001(c)(1)(B).

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:

Bowe Bergdahl
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.

Mark Boal
Like a super-soldier, you mean.

Bowe Bergdahl
Yeah. I was capable of being what I appeared to be. Like, doing what I did was me saying, I am—

Mark Boal

Bowe Bergdahl
—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.

52 Responses to “Is Bergdahl’s captivity mitigating or aggravating?”

  1. Defense Wizard says:

    Could it be a matter in extenuation if used to explain why he didn’t return to his unit sooner? If you believe his version of events wherein he left his unit in order to run to the FOB where his higher headquarters was stationed, it could serve as a basis to explain why this case should be punished with a sentence closer to one we would see in an AWOL case, and not a desertion case.
    Also, with regard to the issue of pity, and a military judge’s ability to render a decision without pity coming into play, that’s not the emotion I would be worried about. There are more experienced defense counsel who comment here, but in my humble opinion, I would never expect pity from a panel. Instead, I expect anger. Keep in mind, panel members are the Officers whose missions were derailed by the search for Bergdahl, who lost men searching for Bergdahl, etc. If I was his defense counsel, I’d be far more worried about that. Finally, I think the MJ is probably better at sorting out the proximate cause issue when it comes to injuries suffered by Soldiers looking for Bergdahl. To tie a specific injury or casualty to the search for Bergdahl is incredibly tricky because Afghanistan is a dangerous place. Regardless of whether or not Bergdahl walked off of his base that night, Troops were going to come into contact with the enemy.

  2. Former DC says:

    Good points all.  This is probably the most dispassionate discussion of the facts I have seen.
    The key here seems to be the lens through which we look. Those who see this as a purely legal issue tend to see the possibility of mitigation here. Those whose point of view is focused on the military effects of BB’s actions tend to see what happened, as a whole, as aggravation. This shows the split in views of judge advocates that I have seen for many years.
    To that end, this may be the reason for the MJ alone strategy.  Most judge advocates fit into the first category (excepting Marines such as yourself), and thus, may be inclined to see these events as mitigation/extenuation.  I brief review of the prior discussion here seems to bear that out.  This might result in a lesser sentence, and provides good fodder for an appeal, if necessary.
    A members panel, on the other hand, is liable to be stacked with combat arms soldiers, who will see things the other way around – and thus might break out the hammer.

  3. Sushi Master says:

    How can it possibly be mitigating or extenuating when Bergdahl himself caused the captivity?  The phrase “killing your parents and begging for mercy b/c you’re an orphan” comes to mind.  No doubt it’s aggravating. 

  4. k fischer says:

    Appellate issues for UCI in this case are illusory.  On the slight chance that ACCA or CAAF find the MJ erred in his UCI analysis, they would ultimately find the error harmless beyond a reasonable doubt, wouldn’t they?
    Defense Wizard raises some good points.  I don’t think a Bragg panel will have any sympathy for him at sentencing.  And, any attempts by him to gain sympathy for his captivity in front of a panel would add significant confinement time.
    What about the extenuation of what was going through his mind at the time?  I didn’t listen to the Serial Podcast, but to those who have, did he ever say, “I was out of my mind.  I quickly realized how stupid it was for me to walk off the FOB unarmed when i got captured by the enemy.  I have regretted that decision every day of my life since then, and I am truly sorry for those who were injured searching for me.”  It sounds like he has some kind of mental issue, maybe a Personality disorder or depressive disorder of some sort, that severely affected his decision making abilities.
    And, did he attempt to escape during his captivity?  He says he attempted to 12 times.  Certainly, those escape attempts would be “particular acts of good conduct or bravery” that would qualify as mitigation.  Indeed, they would dispel any hint of complicity with his captivity that linger in the factfinder’s mind.
    I think deterrence is the argument that appeals to me.  Just like Bradley Manning got 35 years.  I kind of feel for the kid.  He seems pretty crazy and kind of a typical millennial.  He might have had good reasons for doing it.  But, you have to sentence him pretty harshly to show other special snowflakes war is an ugly business and have to follow the chain of command and regulations. You just can’t leak documents to people who are unauthorized to have access to them.  Especially, when you are a twenty something PFC.  
    I get that you aren’t going to have some PFC walk off the FOB into enemy territory a lot.  But, if he doesn’t get significant confinement, then some other special snowflake wanting to go save the world might wander off.
    And for those of you who question the deterrence effect of the UCMJ, remember barracks lawyer Rah was able to deter Barnes from killing Taylor by telling him that he would go dinky dow spending ten years in LBJ for killing an enlisted man.

  5. Jason Grover says:

    I agree completely with Zack’s analysis that legally it is not mitigating or extenuating. But I tend to think that it logical for a defense attorney to argue emotionally that it is mitigating. As far as Bergdahl causing it, like murdering your parents, he can still plea with the MJ he was crazy (not legally speaking) to do what he did, he regrets it, and he has learned his lesson and suffered greatly for it. While it might not be legally extenuating, I think it is a strategy, perhaps his best one. How many TC’s would object that that argument is irrelevant as it is neither mitigating nor extenuating? A TC might object, and be legally correct to do so, but I doubt the MJ will prevent the defense from making the emotional argument. But great analysis Zack.

  6. stewie says:

    First, we aren’t talking about captivity but his treatment during captivity. So, I see no way that his treatment during captivity is “aggravating.” I don’t think you remotely closed the loop between arguing that it’s not mitigating to arguing it’s actually aggravating.
    In fact, you “blur the lines” between the two by arguing primarily about what happened prior to captivity, and not about what happened during captivity.
    Second, does the MJ have any reason to disbelieve the accused when he says:
    1. He was treated poorly.
    2. He tried to escape.
    Short answer is, no. I highly doubt the government has any counter evidence on either front. And given that this is likely a guilty plea or at least a mixed plea, the accused will get credibility via providency. So, you don’t have any evidence he aided his captors, and you don’t have any evidence he broke with the code of conduct (there is also zero evidence he gave them any information).
    So, however dishonorably he acted in the events leading up to his capture, there is zero evidence he acted anything other than honorably after capture.
    Put that all together and it’s absolutely mitigating.
    The question is not whether it is mitigating IMO, the question is whether that mitigation outweighs the aggravation of his leaving the post, the alleged injuries tied with searching for him, and the costs associated with all of that.
    This is not like “murdering your parents” and getting a gunshot wound to your leg in the process. There’s a fundamental difference between doing something directly evil to someone else, and doing something that has a chance of leading to bad things to yourself or other people. That does not make the latter completely removed from culpability (or even removed from culpability at all), but there’s a fundamental difference between the two, particularly when thinking about sentencing.
    We treat intentional murder different from reckless homicide for example. Both are culpable, but they are not treated equally so.

  7. Broadly skilled says:

    It can be both aggravating AND mitigating.
    Evidence of impact to the unit spent trying to find Soldier is clearly permissible (resources. mission impact etc.).
    But evidence the Soldier wants to present to soften his potential sentence is fine as mitigation too. RCM 1001(c)(1)(B) is not an all-inclusive list. He and his defense team will no doubt try to present a vivid picture of captivity to the judge in hopes of lessening confinement. Of course it comes in, no different than a Soldier who wants to present evidence of while I was AWOL I was at my parents’ home taking care of them. Doesn’t meet the duress standard but explains/illuminates the crime for the panel. We can debate the effectiveness and value of the evidence, but it is clearly permissible.

  8. Zachary D Spilman says:

    You wrote, k fischer:

    I didn’t listen to the Serial Podcast, but to those who have, did he ever say, “I was out of my mind.  I quickly realized how stupid it was for me to walk off the FOB unarmed when i got captured by the enemy. . .

    Quite the opposite, in fact.

    [Sarah Koenig]
    In hopes of mitigating the momentous trouble he now realizes he’s in, Bowe figures he’ll try arrive back at the FOB with some extra thing, a gift in the form of valuable intel. He knew that on the road from FOB Sharana to OP Mest there were sometimes IEDs. Bowe had heard someplace that the guys who were planting the IEDs were doing it at night. So he decides he’ll make like a special-forces guy and try to catch someone planting an IED, or about to plant an IED. He’ll look for flashlights bobbing up and down, listen for the crackle of radios.

    Bowe Bergdahl
    The idea would have been, if I had seen somebody in the darkness who looked like they were doing something suspicious, I would then slowly, quietly follow them in the night. And then, in the morning, pick up their trail and track them to wherever it is that they’re going. Then I’d get that information, and so that when I got back to the FOB, you know, they could say, you know, well, you left your position.

    But I could say, well, I also got this information, so, you know, what are you going to do? I have this information of this person who is doing this on this night, and they live here. And so that would be like justifiable, like: He left his post, you know, he left the TCP, but he collected intel that helped us stop, you know, somebody who was putting an IED in the road. You know, that would’ve been the bonus point that would have helped me deal with the whole, basically, hurricane of horror—or not hurricane of horror, but hurricane of wrath—that was gonna hit me once I got back to the FOB.


    I recommend everyone listen to the podcast.

  9. Bionic Barry Dylan says:

    I am wildly curious to see what Bergdahl elects to do as far as testifying.  The rational practitioner in me thinks there is no way he takes the stand under oath in findings (assuming not a guilty plea) or sentencing, as that cross examination might go on for days with lots and lots of really damaging information coming out…but I can’t help but wonder how this might play out. 
    A MJ should give proper weight to unsworn statements as opposed to a panel, which in my experience are more likely to be swayed by the emotion and pain that can come from a well crafted and delivered unsworn.  The podcasts will certainly address part of the brutality of his confinement, but technically, if he really wants to get the full benefit of the story and argue it as mitigation, doesn’t he have to testify under oath?  I am sure there is a lot more to the story than we know…it went on for 5 years…but if he wants the whole story out there and wants to get the benefit of that story being treated like all other facts and evidence…would he risk taking the stand?

  10. k fischer says:

    Do you find the transcripts from Serial someplace or did you transcribe that yourself?  If you have the entire transcipts, could you provide a link?  
    After reading that snippet, I am beginning to think that BB resembles Hank from Me, Myself, and Irene.

  11. stewie says:

    Broadly Skilled, but that’s conflating two things, his captivity and the conditions therein, and the search for him while he was in captivity.  Two different things…one mitigating, one aggravating. The fact-finder will ostensibly assign a value to one, and a reverse value to the other…”add” them together, and the sentence is born. 
    If the mitigation gets a bigger value than the aggravation, then we will see a shorter (or possibly no) sentence to confinement.
    If the reverse, we will see a longer than expected confinement.
    But I don’t think the MJ is going to look at the actual captivity and conditions therein as anything other than mitigation.

  12. Broadly skilled says:

    Agreed there are two things here. Zach posted originally about “captivity” which I believe is more mitigating than aggravating. The search for him while in captivity is obvs the aggravating part.
    BLUF – it all comes in.
    We agree the actual captivity is mitigation period, I think the judge will cap this at 90 days.

  13. Bionic Barry Dylan says:

    Based on some of the fairly damning evidence we all know is coming if there is a conviction…I would be surprised to see a sentence of 90 days or less.  His own admissions coupled with testimony regarding the human cost of the search for him are the best aggravating evidence a TC could ask for.

  14. TC says:

    Why would a SPCM not have been authorized to adjudge a punitive discharge?

  15. Mensa Dropout says:

    You can’t set yourself up to get captured in indian country and then complain that the indians treated you poorly.  B/c that’s what indians do, and you knew that when you left the FOB.  Hell, you knew that before you deployed. 

  16. Zachary D Spilman says:

    In my comment above, k fischer, the word transcript in parentheses is red and underlined – like this – signifying a link. To the transcript. On the Serial website. 

  17. k fischer says:

    I took your advice and spent about 15 minutes reading some of the transcripts beginning here:
    In hindsight part 1 & 2, I learned that Bergdahl joined the Coast Guard in ’06 only to be kicked out after being diagnosed with an adjustment disorder with depression.  He gets a waiver to enlist in the Army in ’08 when the economy was going well and the Army was hurting for recruits.  After his release from captivity, he is assessed with schizotypal personality disorder by the 706 board.

    And Valdovinos says it’s not a stretch to say that’s probably what happened when Bowe was deployed to Afghanistan, where it’s actually dangerous, it’s obviously stressful. Bowe’s not super tight with the guys in his unit. He starts to think his battalion commander is against them—might even send them on a suicide mission, which is very paranoid thinking. And that all leads to a decision that isn’t, well, entirely sane.

    Michael Valdovinos
    By that point, I think the paranoia of it all kind of pushed him over the edge, and he said, I’m doing it. When you start thinking about the idea of him being Jason Bourne, and, you know, him doing special operations, it sort of fed into that whole narrative—that, you know, I’m going to be able to do this, I’m going to go and bring the help—and not really thinking through the ramifications of walking off a base into…basically into the Taliban. For most of us, it would be an absolute…sort of an absolute boundary for us, you know, to say, hey, even if I’m frustrated with my command, even if I’m frustrated with this mission, frustrated with the army, there’s still something, I think biologically, that’s going to keep us from literally walking off a base.

    Sarah Koenig
    Right. Like just self-preservation at that point would kick in.


    Michael Valdovinos
    Exactly. And so for him to actually do that, you have to think through, like, wow, how could he have done this? You know? And when you look at the whole total picture, it starts to make sense.

    That’s the extenuation in him committing the offense.  It would be one thing if he walked off to go rape some little girl he met on patrol or to defect to the enemy Army.  But,this guy’s nuts.  He walks off to go complain to his chain of command based on a paranoid perception that his Battalion commander was out to get him or send the unit on a suicide mission. He’s not evil.  He has a service disqualifying PD that the Army should not have waived.  
    All these statements in these podcasts are delusions of grandeur from a crazy person who is unable to understand that the stuff coming out of his mouth is crazy.  And, this isn’t some kind of made up bs to deflect blame for his court-martial.  He’s got a history of this disorder-like behavior from before ’06.  
    I would have a hard time hammering him, even for the deterrence factor.  


  18. Defense Wizard says:

    If you listened to Serial, it’s clear that Bowe has some pretty legit psychological issues.In the podcast, he says, in no uncertain terms, that he was trying to trigger a DUSTWUN.

  19. Pinball Wizard says:

    The defense counsel in this case have earned their fee, for sure.  They’ve managed to delay this thing for so long that a light sentence won’t draw near the rebuke it would have had the system (you know, the one that’s supposed to be expedient so we can fight wars and stuff) dealt with this in a reasonably timely manner.

  20. k fischer says:

    And, if you read the Sanity Board’s conclusions here, it’s pretty clear that at the time of the alleged misconduct, he suffered a serious mental defect.

  21. Vulture says:

    Zach, you say “It doesn’t explain the circumstances surrounding the commission of any offense because he was captured after he committed either offense.”  How do you obtain that logic?  The predicate for the charging decision of misbehavior before the enemy was a counter-punch by the prosecution to the very fact that he was captured, was it not.  If he had not been captured, it would be pretty hard to say that he was before the enemy would it not?  After all, this is all about those, highly speculative, foreseeable consequences, aren’t they.  Government saw the mitigation argument and, at least in the eyes of the Defense, made a “creative charging decision.”  They attached a basis for determining guilt to a very rarely used charge.  Under the circumstances that the 32 made it’s recommendation and the other investigations, anyone that isn’t apprehensive of that is fooling themselves.  I’m of the opinion that the Government took this route to get the Accused to plead to a lesser offense.  Maybe that is an end result win for them because of the Judge alone.  But bad facts make for bad law, and this rarely used charge is going to go into a Court-Martial with some bad facts because BB is a wackjob.

  22. stewie says:

    kf, yes, that’s a whole separate mitigating issue. What he did is not something a normal, well-adjusted person does. It is not logical, it’s not even rational. It’s certainly something done with disregard for his own personal safety. Obviously he isn’t legally insane so he’s still culpable, but you don’t need a medical diagnosis to in total say, ok, there’s something at least a little bit beyond his control that contributed to what he decided to do.
    That plus his conditions in captivity and the duration of the captivity are pretty powerful mitigators.
    Now, if the government can show real, significant injuries directly tied to the search for him, that’s pretty powerful aggravation.
    But much like the aforementioned buttered cat, I think the two more or less at worst for him cancel out, at best, the former outweighs the latter.  He spent five years in “confinement” and that “confinement” was way worse than normal. So unless COL Nance thinks this is a life in prison sentence, that would seem somewhat likely to reduce his sentence significantly.

  23. Vulture says:

    OK, stewie.  I’ll go with your position, maybe not wackjob.  Maybe nitwit.

  24. NutCutter says:

    stewie, you just described a lot of sociopaths and psychopaths in your first paragraph.  Pretty sure they still get hammered at sentencing.  And you have not addressed the point that BB caused his own captivity…it was a virtual certainty once he left the friendly confines that his non-cowardly buddies provided.  He will get zero credit for that captivity.  And how bad was he really treated anyway?  I’m sure he didn’t get steak au poivre very often, but was he really abused?  And before you say yes, please know that I will not accept an answer that relies solely on BB’s version of events—I’d like to see some independent evidence of bad treatment.  He looked pretty spry in that propaganda video of his release…arranged by Barack Hussein Obamabinladen.

  25. Concerned Defender says:

    Shifting gears for a moment – in my view with a near certain conviction, on one or both, I’d go naked plea and throw myself on the mercy of the court (absent getting the best possible deal from the government – a load shot by shifting to JA – maybe they tried that already?).  Prepare the best mitigating naked guilty plea statement, and beg for mercy.  Get as much mileage out of the 706 as possible, lessons learned, etc.  
    As to sentencing: Some is mitigating, and some is aggravating.  
    On balance, anything mitigating is really his own doing outside of the waiver received into the Army – but then again that’s sorta BB’s own fault as well.  If you’re crazy, maybe you don’t join the service?!?!   Metaphor – if you like child porn, don’t hang around children. Hard to argue much mitigation for someone who knows he has propensity for child porn, then gets a job at a daycare and molests a child because the daycare knew of his propensity and hired him.  Some of it’s personal accountability.  We were a nation at war, so why would an anti-war guy with mental issues enlist???  Makes no sense.  They Army can’t predict his behavior or know his thoughts as well as BB can.
    I think his captivity term and conditions are not mitigating but more aggravating because they are the direct and proximate cause from wandering off into hostile territory without a weapon (particularly combined with his nonsense story of walking to alert the other command of issues, and his anti-American hate mail home).  Sure, he’s delusional.  But that’s not the Army’s fault.
    Yes, perhaps there’s extenuation in that his term of captivity wasn’t up to him and he wasn’t free to go.  However, again, it goes back to it’s his own doing.  And, he lived to tell about it.  Unlike most Americans in similar situations.  Very hard to find sympathy for him since he wasn’t beheaded on video like so many others.  I naturally wonder HOW he was able to survive 5 years when so many others died.
    I simply scoff at his suggestion that his captivity was aggravating on a factual basis.  I would suggest that many military experiences for non-criminals is as hard or folks doing their duties suffered worse fates.  Ranger school, SERE, BUD/s…  for starters.  Or how about those injured looking for him? How about those killed independent of him.  I would probably be more angered at him raising the mitigation, knowing that others died DOING THEIR DUTIES, while he was off playing cowboy or POW.  While I’m not making light of his discomfort in captivity, in contrast, anyone that served and deployed suffered from our own deployment experiences to a pretty significant degree – and some didn’t return in one piece or at all. It’s aggravating because he won the captivity lottery with “kind” captors who apparently fed him and didn’t do any permanent damage to him.  The whole situation is vastly more aggravating, and it’s almost aggravating trying to garner sympathy for his own fate.
    The examples given are spot on.  A widower doesn’t get mitigation sympathy when she’s murdered her husband.  A DUI driver who injured himself in an accident that killed a family isn’t entitled to mitigation for his injuries caused by his illegal conduct.  Would an accused be entitled to mitigation because he’s facing a long prison sentence?  I think not.  An accused essentially must accept the natural and probable consequences of his/her own misdeeds.  Here, it’s captivity.
    In front of a Ft. Bragg panel, I wouldn’t even attempt to argue mitigation for the captivity he caused.  And a panel could very well give him decades in prison.  I’d say he would get more mileage not arguing it at all but instead accepting it as a consequence to his actions.  As such, this was a JA case all along, and the Defense has planted that seed and might argue it.  I’d assume the MJ can/will compartmentalize and make a well-reasoned decision on aggravation and mitigation.  I still wouldn’t even attempt to argue captivity as mitigation.  The juice isn’t worth the squeeze.  It’s so obvious as to not mention it, and mentioning it can backfire.
    Having said that a conviction and sentence will be harsh for reasons of maintaining Good Order and Discipline, taking all factors into consideration.  Our Armed Forces can’t have this behavior in the ranks, particularly in combat theaters.  Just like Manning – who clearly has issues – got decades in confinement.  Look at the energy this has expended across 3 Presidential terms from 2009 until now.  The energy, the resources, the exposure to injury and death, the money, the terrorist trades…  It is staggering the amount of energy this has consumed for one man.
    I wouldn’t be shocked with a naked plea, either.  I would seriously consider this – throw yourself on the mercy of the court and roll everything on as light of sentence as possible.  Because he’s getting convicted – the writing is on the wall.  While stranger things have happened, you can’t write anti-American letters home, abandon your post and leave your weapons and gear behind, and not be convicted of one or both crimes. 

  26. Alfonso Decimo says:

    Many of the commenters in this thread appear ready to prejudge, but the MJ in this case will presumably have the proper judicial demeanor and, despite all the spin efforts by lawyers on both sides, the MJ will have all (or most) of the important facts and he/she will decide an appropriate sentence based on the facts and his/her own reasoning. The attorneys will tend to face the gallery when they’re playing to the media, or the accused when its directed to him, but the MJ does the man-in-the-mirror routine and disregards the spin. Judges are chosen for their judicial demeanor. That’s why the defense was brilliant to choose judge-alone.

  27. stewie says:

    Well of course we are “prejudging.” It’s a blog, we are never going to have all the evidence, so other than 25 posts that say, I wonder what will happen because I can’t prejudge anything or make assumptions or guesses, there’s going to be some “prejudging.”
    And leave it to CD to actually make the argument that if a crazy person joins the service, it’s his fault for being accepted in.

  28. ThatGuy says:


  29. Defense Wizard says:

    The common refrain from around 2010 until at least 2015 was “this is what happens when you lower standards to increase your numbers.” The thought was that the waivers issued from 2007 onward were causing a spike in MJ actions once it was time to lower numbers in Iraq and Afghanistan.So is there any Caveat Emptor on the part of the Army? I mean, they took a guy who couldn’t make it through another service’s bootcamp, and decided to make him an infantryman in Afghanistan. Same with Chelsea Manning. It was no secret that then-PFC Manning was in a downward spiral, and yet, clearances didn’t get pulled. Instead, they kept her (or him at the time, however we address that) in-country, instead of sending her back to CONUS for administrative separation for a behavior disorder.Not saying the misconduct is the Army’s fault, but we can’t act indignant when the Army gave the tools to the accused to commit misconduct when we were on notice that these were not the right people to trust with those said tools.

  30. Former DC says:

    On the caveat emptor, in a word: no. The law expects us all – regardless of anything less than insanity (which BB’s condition does not reach), to conform our conduct to the law’s minimal boundaries. Exhibit A: Pvt Eddie Slovik. It is never the service’s fault that a soldier decides to misbehave.

  31. stewie says:

    Fault can be in more than one place at a time, so yes it absolutely can be both the Army and the Soldier’s fault when a Soldier misbehaves. Knowingly taking in someone who was released from another service with known mental health issues (the CG no less) is at least accepting some level of risk of problems with said person. Doesn’t mean they get a get out of jail free card, but certainly means the Service taking that risk is at least partially culpable for what follows.

  32. Defense Wizard says:

    The Eddie Slovik case…where the pre-trial offer was a rehab transfer for a guy that was 4F before they needed more bodies. I’m not saying BB is not culpable. I’m saying that we shouldn’t act indignant when it appears the Army gave the accused the tools to commit misconduct after knowing the accused was likely unfit for service.

  33. NutCutter says:

    Ah, the snowflakes have arrived.  How can you tell?  They’re saying it’s the Army’s fault BB deserted.  No such thing as personal responsibility anymore…makes me sad.

  34. Concerned Defender says:

    Eh, I think folks are making too much of BB’s release from the Coast Guard and his odd mental personality.  If we’re being totally truthful, we all know and worked with aplenty of folks in the service who probably shouldn’t be in the service, and probably had not insignificant personality disorders such as delusions of grandeur or were decision making or ethically challenged or cowards.  I know more than a handful of officers in the JAG Corp who had one or more of those – getting pregnant purposefully to shirt a deployment, malingering with fake profiles to avoid APFTs, thinking they are the best TC in the land having lost 5 cases in a year, serious ethical issues, etc.   I’d suggest the majority of folks you meet have some serious mental hangups – heck in 2016 POTUS election, 25% of the country voted for one candidate and 25% for the other and 50% not at all.  So a good 75% of the people you meet daily are either nuts or so indifferent they just don’t care!  That’s our society.  And the services probably reflect that to some degree.
    I don’t find the military culpable at all for giving someone a chance to redeem himself or herself.  Maybe the Coast Guard was wrong, by the way.  The information back then was not perfect.  I currently have a client who is fighting a nonsense “personality disorder” discharge from the military when he was clearly railroaded by his chain of command that didn’t care for his strong personality.  And he’s not crazy legally.  He was cleared by the 706.  He apparently knew it was wrong at the time and now, and understands the process and can participate in his defense.  
    I don’t think there’s any “brilliance” in picking JA.  I believe it was a foregone conclusion.  There are two choices, not 10, or 100, or a million.  And when faced with almost certain conviction(s) on highly prejudicial facts and sentencing aggravation, and with a life sentence at play, and having lost all motions on UCI, it would probably be borderline IAC to recommend a panel case.  
    Odds of losing are quite high.  And odds of a huge sentence are far higher with a panel. 

  35. Defense Wizard says:

    Agreed that it was a forgone conclusion. Sending Bergdahl to a panel of infantry officers would have likely yielded a sentence measured in decades. And yes, lots of folks are crazy, and lots of folks slip through the screening process and end up in the military when they should not. This one should have been an easy call, though. If you can’t make through CG boot camp, you probably won’t make it through being on a primitive Army OP.With regard to NutCutter, nobody is blaming the Army for his desertion. I am blaming the Army for giving him the rope to hang himself with. He’s should face consequences, but we shouldn’t act surprised when someone who should have never been in the military starts acting like it.

  36. a. hernandez says:

    So there are those who see it as aggravating and others as mitigating.  So the arguments are previous service cut short after being diagnosed with an adjustment disorder, 706 board result, suffering while under captivity, etc.  On the other hand, he abandoned his post voluntarily, fellow servicemembers risked life and limb searching for him, money, time, effort and distractions from mission accomplishment, etc.  Regardless of which side anybody chooses, his defense counsel will use every fact available to argue on behalf of his client, which of course, is his or her job (and which does not make that person a snowflake).

  37. Dell Ickitt says:

    I absolutely agree with all of you are excusing BB’s conduct.  He should not be held responsible for what the Army did to him.  They never should have let him sign up.  And they certainly shouldn’t have deployed him to engage in a war he did not believe in.  Kudos to all of you who have said this.

  38. Concerned Defender says:

    @ Dell – I suspect taking your view would be quite a slippery slope and would essentially undermine the entire UCMJ, good order and discipline, and war fighting abilities.   
    Alas I suppose that’s a big problem of society today.  No personal responsibility, it’s always someone elses’ fault, blame the other guy, etc.  
    Let’s just briefly talk about this.  Let’s assume that BB has some odd personality and distorted views.  How in the world does that justify committing two of the most serious offenses in the UCMJ, unrelated to his personality issues?  For the sake of discussion, perhaps if he got into trouble for pretending he was the CSM every day, or demanding that the Commanders follow his guidance on war fighting, that would be more easily linked to his personality issues.  But that’s not what he did.  He showed some pretty serious anti-American sentiments and cowardice.  His personality issues don’t explain that.
    And just like Ferres bars lawsuits against the military for negligence, there’s a public policy for that.  A profession at arms is extremely inherently  dangerous, even under ideal circumstances.  If you need evidence, in the last month several non-combat aircraft and naval ships have crashed and dozens have been killed in training or routine service.  It’s dangerous.  
    And it would be an impossible task to prevent every person with personality quirks and oddities from enlisting.  Giving those goofballs a blank check to commit misconduct would be a very bad precedent.   If you’ve ever served you probably can name many people who were not mentally fit in your opinion to wear a uniform, yet there they were, in uniform, and passed the minimum sanity standards.  However if they committed misconduct it’s NOT the military’s fault. 

  39. Vulture says:

    This week there was an eclipse, a hurricane, and the Army has decided to Court-Martial a retired General.  But it took Concerned Defender to bring us the Zombie Apocalypse by coming back from the dead for a BB discussion. 
    Like you said CD, it’s inherently dangerous, so stop blaming BB for other people’s wound’s.

  40. Defense Wizard says:

    If only there were some sort of nuanced way to address the fact that Bergdahl should have never been in the military and still should face justice for his crimes (assuming he is found guilty)….Bergdahl wasn’t that “weird guy in the platoon” and didn’t have a “quirky personality.” The 706 showed that he did in fact have a severe mental illness or defect, but not one that rose to the level of excusing culpability. Got it. People better at medicine than myself (or presumably, anyone else here) said he was cuckoo but not too cuckoo to stand trial. There are plenty of people that are cuckoo but make it through their term of service and don’t commit crimes. Heck, some even make serious rank. But when there are warning signs (like in Hassan, Manning, etc), and the Army doesn’t send the guy packing, society should be asking serious questions as to why.

  41. Dell Ickitt says:

    Defense Wizard, I completely agree—the Army should be put on trial here, not BB.  Like you, I believe that the Army should have to pay BB significant damages for the wrongs they have perpetrated against him, and, more importantly, his soul…

  42. Concerned Defender says:

    Now I’m inclined to believe Dell and Defense Wizard are satire.  Perhaps the pendulum shift from such and approach would be to demand absolute flawless perfection from every candidate or applicant or member of the armed services, and any perceived defect would be automatic no-second-chances separation.  
    Because no serious lawyer would argue that such a policy should be in place to hold the organization responsible for giving an individual the benefit of doubt that they could behave like a responsible adult and not, ya know, abandon their post in hostile enemy territory and shut down an operation, and the easily predictable secondary effects (rescue missions, cost, etc.). 
    Because that’s exactly how the services would react.  And we’d end up with the equivalent of an hypothetical “aryan race” of candidates.  And there would be predictable complaints and cries from all groups about their not being able to serve… 
    I’d encourage a bit more thought and a bit less knee-jerk reaction.  
    BB knew that leaving was wrong.  And he understands the nature of his trial and can participate.  Anything else on his mental capacity is smoke and mirrors.  

  43. DCGoneGalt says:

    Instead of satire, what if all 3 of you are stewie’s imaginary CAAFLOG friends and he is really single-handedly responsible for arguing both sides?  Best theory I can think of.

  44. Dell Ickitt says:

    Ccncerned Defender,
    I am as serious as an improperly prepared latte, and I’m sure Defense Wizard is as well.  We and others (stewie et al) who have posted above simply cannot ignore the Army’s principal fault in this fiasco.  The Army signed up BB, deployed him knowing he did not agree with it, and failed to assign a soldier (or more preferably a team of soldiers) to monitor and take care of him while in country.  Their failure to prevent his innocent walkabout is squarely on them, from the Pentagon to the unit level.  In fact, I’ll throw something out here that should be considered:  maybe we should be talking about court-martialing the soldiers in BB’s unit who should have been monitoring him and preventing this from happening….I’m pretty sure dereliction of duty is still an offense under the Unjust Code of Military Justice-ish.

  45. Concerned Defender says:

    @  Vulture.
    I realize causation is a hard concept for some, even a 1L.  When discussing such things with adult lawyers, I’d encourage you to at least pretend to read and have a fundamental understanding of causation by starting with Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928).  
    But you needn’t be a lawyer to know this, really, since every Soldier knows if they are captured there will be a search conducted and that search will be dangerous for those involved since they will necessarily take more risks, travel into enemy territory, be exposed to gunfire, IEDs, accidents, crashes, etc. (for reference, in the last month dozens of service members have died in non-combat vehicle accidents from planes, helos, and marine craft).  Clearly there’s a causation nexus if you are the sole reason that others are out on missions looking for you.  
    In lay terms, if you abandon your post and go missing, bad things are not only probable but likely.   Missions will get scratched, others will raise alarms and your brothers here and elsewhere will start combing the area looking for you.  Any Joe that ever lost a NOD on a FTX knows the “hands across America” drill and everyone is on lockdown.  Well, now do that for a missing Joe in hostile country.  And brothers will be subject to extra patrols, flights, etc. and exposed to a lot of needless risks and could die.  So even a “crazy” E-nothing understands this.  He also knows that desertion is a very serious violation of the UCMJ.   No legal education is really necessary since in Joe terms, it’s very bad.
    So, in legal terms – 
    Foreseeable?  Yes
    Causation? Yes
    Risk enhancement? Yup
    Concurrent causes?  Maybe
    Intervening causes and bad actors?  Maybe

  46. Concerned Defender says:

    Dell said:
    Ccncerned Defender,I am as serious as an improperly prepared latte, and I’m sure Defense Wizard is as well.  We and others (stewie et al) who have posted above simply cannot ignore the Army’s principal fault in this fiasco.  The Army signed up BB, deployed him knowing he did not agree with it, and failed to assign a soldier (or more preferably a team of soldiers) to monitor and take care of him while in country.  Their failure to prevent his innocent walkabout is squarely on them, from the Pentagon to the unit level.  In fact, I’ll throw something out here that should be considered:  maybe we should be talking about court-martialing the soldiers in BB’s unit who should have been monitoring him and preventing this from happening….I’m pretty sure dereliction of duty is still an offense under the Unjust Code of Military Justice-ish.

    Yes, you’re right. The Army sought out BB, begged him to come along, sought is vote and opinion on the war efforts, and should have detailed a team to baby sit him on their 15 month deployment since  they had nothing better to do… 
    I’m curious, Dell, what was the big warning sign for Bergdahl that you would have, prior to his misconduct, taken him so seriously and not otherwise violated his rights?  Or opportunities in life for a second chance?  You do believe in second chances, I presume?  Or should BB in 2007 just be viewed as a total failure and never given a job by anyone  ever again?

  47. Concerned Defender says:

    And while on the topic of aggravation, while it’s apparently not part of the Court Martial, I’ll simply remind anyone reading this that it’s commonly believed by the men who served there:
    Six GIs were killed while on active search missions for BB. 
    COP Keating was delayed in closing due to the diverted assets searching for BB.  That delay of the closing of COP Keating left Soldiers there past their departure date.  Just a couple months after BB abandoned his post, and assets diverted looking for him, COP Keating was attacked and overran by 300 Taliban when they should not have been there and the base closed.  Eight American Soldiers were killed and 22 more wounded in that attack.  
    So, perhaps there’s a weak causal nexus there.  I’d err on the side from a legal standpoint of not including any weak evidence to prevent future legal challenges.  Having said that, in my mind it’s clear that BB’s criminality is at minimum a contributory cause of some or all of these deaths and injuries.  
    Hard to argue that diverting assets to search for him in the immediate months after his disappearance would not have had at least some impacts on missions, resources, and expose people to hostilities needlessly. 

  48. Vulture says:

    Wallace v. Jones, 168 Va. 38 (1937)

  49. DCGoneGalt says:

    stewie sure is busy tonight.

  50. stewie says:

    DCGG, I’m thinking CD has a famous twitter account and he comes here to continue his craziness anonymously.

  51. DCGoneGalt says:

    You’re POTUS!?!  Even I never suspected it went that high.

  52. stewie says:

    Shhhhh…I’ve got a wall to build…with pesos!