Army Sergeant Bowe Bergdahl recently returned to duty, and was interviewed by Army investigators. This has many people confused and upset. If Bergdahl is a deserter or even a traitor, many Americans wonder why he still in the Army, or feel that if he wears a uniform it should be in a stockade.  Other people, mainly on the left, see Bergdahl as a hero. Also, regardless of how Bergdahl ended up with the Taliban, he might have critical intelligence for the United States, making him valuable. Thus, Bergdahl’s case presents a perplexing problem for the Army.  In the end, I suspect, the final outcome of this case will not please those who, like the president, think Bergdahl is a hero, or many veterans and other Americans, who see Bergdahl as a deserter and traitor.

President, Obama’s Rose Garden announcement of Bergdahls’ exchange for Taliban terrorists, accompanied by Bergdahl’s bizarre parents, made this case, like much else in America under his administration, more complicated. Obama’s evident glee as Bergdahl pere quoted from the Quran, the pomp surrounding the announcement of the exchange, and his spokespeople’s descriptions of Bergdahl as a “hero” leave little doubt as to where the president stands on the matter. 

As the Commander in Chief, Obama is supposed to keep these things to himself. He might have learned that lesson when he stepped over the line in discussing sexual assault cases in the military, but Obama doesn’t seem to learn much. The generals and admirals who eventually have to decide whether to prosecute cases, as political animals themselves, are not immune to the clear preferences of their boss, even though they are supposed to ignore him with respect to judicial decisions. 

Even without the Obama factor, Bergdahl’s case is difficult. It’s never been as simple as just kicking him out. For those who are convinced that Bergdahl deserted, and/or is a traitor to boot, the problem is proving it. 

The easier of the two crimes to prove is desertion, but even proving that may be problematic. Desertion is a specific intent crime. To secure a conviction, the Army will have to prove, beyond a reasonable doubt, that when Bergdahl left his post, he intended to permanently absent himself from duty. This is difficult, and why desertion charges are infrequently brought by military prosecutors. It is much easier to charge a soldier with AWOL and kick him/her out of the Army administratively.

There is circumstantial evidence that Bergdahl deserted. His writings show an increasing hostility toward the United States and many of his fellow soldiers believe he deserted. He shed his weapons and walked off the post with a compass, knife, water and a few personal items. These things inferentially suggest he did not intend to return. But is this proof beyond a reasonable doubt? The officers and NCOs who would be on Bergdahl’s court martial panel know that soldiers gripe all the time and sometimes do remarkably foolish things.   

Further, if Bergdahl raises the defense of duress, i.e., that the Taliban prevented his return to duty, the Army would have to prove, beyond a reasonable doubt, that this was not the case. Since it appears that at least part of the time Bergdahl was indeed kept as a prisoner of the Taliban (whether or not he initially sought them out voluntarily) this would be an extremely high hurdle for Army prosecutors to clear.        

Bergdahl’s odd psychological and family background adds fuel to suggestions that he was indeed a deserter, or even a traitor. But none of that is likely to be admissible in court. Plus, Bergdahl has refused to see his parents since his release.This is a good legal strategy, but it appears to pre-date Bergdahl’s retention of counsel. So unless Bergdahl seriously and correctly thought through his legal predicament on his own at the time of his release -- which is entirely possible -- it reflects a genuine break with his parents.  What that means is open to interpretation, and is likely not going to be admissible in court anyway. 

Berdahl has lawyered up and is represented by Eugene R. Fidell an attorney experienced in military justice cases. Fidell allowed Army investigators a limited opportunity to talk to his client on August 6, and indicated that this would be Bergdahl’s only interview with investigators. 

Pursuant to the Uniform Code of Military Justice (UCMJ) Bergdahl was advised of his rights against self-incrimination.  But the supposedly cordial interview suggests that there is little likelihood that Bergdahl incriminated himself. He supposedly answered all questions, and there is no indication that he invoked his 5th Amendment Rights. And since Bergdahl’s interview will likely be the only thing he says publicly about the matter until the issue of his legal jeopardy is resolved, he will not expose himself to any self-contradictory statements.  

It is likely that Bergdahl, through his attorney, told investigators that he has no memory of leaving his post or of his capture. The information provided about Bergdahl’s mental state upon his release might support a claim of post-traumatic amnesia. If indeed Bergdahl claimed amnesia, it’s likely that Fidell limited any questioning by investigators about his client’s capture which is why Bergdahl probably did not need to plead the 5th.That or Bergdahl just answered “I don’t remember.”

But by talking to investigators about other things, Bergdahl gives the impression he is cooperative, and sets up his defense of duress. If he has information about the Taliban that might assist American intelligence operations, he presumably gave it, or gave some version of the facts of his time with the Taliban. 

So what is the Army going to do? First of all, keeping Bergdahl on duty leaves him open to judicial action, and at least allows the Army to not only investigate possible court martial charges, but also the nature of Bergdahl’s release from duty; whether it will be honorable or less than honorable.

Moving beyond that to a prosecution for desertion -- there is no way the Army is going to make a case for treason or likely even try -- is going to be hard. Without an admission from Bergdahl, proving desertion will be difficult, if not impossible.

If the Army decides to prosecute for desertion, Bergdahl would have to be charged, and then the charges referred to an Article 32 hearing. Article 32 hearings are the military equivalent of a grand jury, but more probative. Bergdahl and his attorneys can be present, cross-examine witnesses, and present their own. 

Article 32s can be good way for a convening general to get out of a difficult case if he wants to, simply by following the advice of a hearing officer who might find that insufficient grounds exist to pursue the case as charged. For example, the officer can suggest that the case proceed as an AWOL. But it is up to the general.  He doesn’t have to follow the recommendation of the hearing officer.

In the end, this case may actually boil down to whether Bergdahl is entitled to several hundred thousand dollars in back pay. Regardless of whether Bergdahl is prosecuted, the Army must make an administrative decision about that. The Army probably can get out of paying Bergdahl if it makes an administrative determination that Bergdahl went AWOL or deserted, and did not earn his pay in the line of duty. This doesn’t require proof beyond a reasonable doubt.  

Presumably, Bergdahl and his attorneys know this. If there is anything a defense lawyer wants more than getting his client off, it’s getting paid. In the end, the Army might offer Bergdahl a form of non-judicial military punishment for going AWOL (Article 15), in return for some percentage of his back pay. The partial payment will be justified on the theory that if Bergdahl went AWOL (not deserted) he would have at some point returned to duty, but for his “capture” by the Taliban. So he should be entitled to some, but not all his back pay. Then the Army could kick him out and determine the appropriate discharge -- honorable or not.

Were such a deal offered, and were Bergdahl to accept, it gives the Army an out, Obama an out, and gets Bergdahl and his lawyer some money (before the book deal.) Thus, it may prove attractive to both sides. It will not please those on the left who see Bergdahl as a hero, or those Americans who believe him to be a deserter or worse  But it is a likely outcome.