Bergdahl's lawyer knows the military, media
By SIG CHRISTENSON | San Antonio Express-News | Published: August 10, 2014
SAN ANTONIO — The civilian lawyer for Army Sgt. Bowe Bergdahl says his profession isn't about the big cases, and the most important ones often involve obscure attorneys and fly below the public's radar.
But Eugene Fidell is one of the nation's best-known military lawyers. A Harvard Law School graduate who teaches at Yale, he's an expert on U.S. military justice and is touted by other attorneys as someone without peer in specialized military law.
Bergdahl was released in May after five years of captivity in a controversial swap for five Taliban prisoners. He was quickly vilified by many after his release in Afghanistan and eventual transfer to Joint Base San Antonio-Fort Sam Houston, where he remains while his case is investigated.
Fidell had also represented Capt. James Yee, a Muslim chaplain accused in 2004 of being a spy.
Harvard, Fidell said, instilled a sense of duty, a charge to take such cases as part of supporting America's legal system and democracy itself.
"This is what comes with being a lawyer," he said. "There are times in any lawyer's career where situations present themselves where you see somebody needs legal assistance, legal services, the person may be very unpopular ... and one of the really great traditions of the Anglo-American bar is that lawyers do make themselves available when you have a friendless litigant, or friendless person, in a jam."
By Fidell's own account, the fight for Bergdahl may be even more complex than the one involving Yee, who was initially charged with spying, espionage, mutiny and sedition while a chaplain at Guantanamo Bay, a potential death-penalty case.
Lawyers say Fidell is fighting on two fronts now -- the court of public opinion, where Bergdahl has taken a beating, and possibly a military courtroom. Fidell, they say, wants to avoid a trial for desertion. Because Congress hasn't declared war on Afghanistan, desertion is not a death-penalty offense.
Bergdahl could get five years in prison.
A passion for due process is part of what drives Fidell, 69, a Queens, N.Y., native who began his career as a Coast Guard lawyer and is now known for his efforts to transform military law. He credits his brother, Jay Fidell, for that. An attorney in Honolulu, Jay Fidell also was a lawyer in the Coast Guard before becoming a military judge.
"We're different in important ways, but he has had a brilliant career in law practice in Hawaii," Eugene Fidell said, calling him highly public-spirited and adding, "I think that is always quite important. It's clearly a value there and I probably picked it up from him."
Observers aren't surprised by Fidell's decision to represent Bergdahl, and say his knowledge of the law and his media skills make him a natural for the case.
"To the extent that anybody in the United States is aware of this issue right now, it's because people have already tried and convicted (Bergdahl) in the court of public opinion," said Christopher Swift of Georgetown University's School of Foreign Service. "And under those circumstances, if I were advising Bergdahl, I would say you need a lawyer who's going to be able to manage the story in addition to being able to manage the law."
Yee, who resumed his Army career after all charges were dropped, recalled the day Fidell and his legal team walked out of a closed-door session with their judge.
"They marched right out to the front steps of the building and proceeded to hold a press conference and saying my rights as an individual were being violated because the judge was not giving me as a defendant the right to an open hearing," said Yee, 46, and now a civilian living in Bloomfield, N.J.
Fidell's battles include submitting scores of friend-of-the-court briefs, one in support of a Guantanamo military commission defendant and another for a Fort Hood soldier given the death penalty. In 1987, Fidell argued before the Supreme Court in a child molestation case involving a member of the Coast Guard.
"We didn't win the case, but that's part of law practice," he said.
On the day last week that Bergdahl met with a general investigating his disappearance five years ago from Combat Outpost Mest-Lalak in Afghanistan, Fidell hit the airwaves. Going on TV, giving lengthy interviews and distributing a photo taken of his client looking relaxed and healthy, he revealed that Bergdahl talked freely with Maj. Gen. Kenneth Dahl after being read his rights.
The revelation that Bergdahl cooperated raised eyebrows among lawyers who say it's rare for suspects to risk incriminating themselves. Military attorney Frank Spinner saw a larger strategy in play, suggesting Bergdahl's testimony could put him in a good light.
"That gets my attention. It is hard for me to believe that Gene would let Bergdahl talk with anybody if he intended to desert," Spinner said.
Retired Maj. Gen. Charles Dunlap Jr., former Air Force deputy judge advocate general, isn't second-guessing his friend of two decades. He noted that Fidell, as a civilian lawyer, can go to the media, while military defense counsel cannot, and he also has a knack for understanding the political dynamics associated with his client's case.
"If Gene can somehow cast his client as a sympathetic figure to politicos, especially those with little or no military experience, that -- along with the presumption of innocence -- might be enough to help him to create the kind of atmospherics that could get his client, if not fully exonerated, at least an administrative disposition instead of a court-martial," he said.
Retired Army Lt. Col. Geoffrey Corn, a professor at South Texas College of Law in Houston, said Fidell is "universally recognized as an expert in military law, particularly criminal law."
He also pointed to Fidell's efforts to change the Pentagon's legal system and his work in creating the National Institute of Military Justice, a Washington, D.C., interest group.
"He's a very, very smart guy, he loves the subject matter, is very devoted to the system and he is a real gentleman," said Corn, who has worked with Fidell.
Not everyone agrees with Fidell, who was the sole dissenter in a report issued by the Defense Legal Policy Board's subcommittee on military justice in combat zones and is pushing to strip commanders of their right to order trials, but they share Dunlap's assessment. Fidell is "a superb scholar of military justice," he said.
"I would consider him to be the cream of the crop in the military justice field," said retired Air Force Col. Morris Davis, a former Guantanamo military commissions' chief prosecutor.