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A video screen grab shows U.S. soldier Bowe Bergdahl. In the video, released April 7, 2010, by the the Site Intelligence Group from the Taliban, Bergdahl says he wants to return to his family in Idaho and that the war in Afghanistan is not worth the number of lives that have been lost or wasted in prison.

A video screen grab shows U.S. soldier Bowe Bergdahl. In the video, released April 7, 2010, by the the Site Intelligence Group from the Taliban, Bergdahl says he wants to return to his family in Idaho and that the war in Afghanistan is not worth the number of lives that have been lost or wasted in prison. (Site Intelligence Group)

WASHINGTON — Nearly one year after the Army charged Bowe Bergdahl with crimes that could send him to prison for the rest of his life, the former Taliban captive’s defense team has launched an increasingly public campaign to change the narrative surrounding his court-martial.

With litigation in Bergdahl’s case indefinitely stalled, the sergeant’s lawyers released documents Wednesday that they believe will help dispel the widely held opinion that their client is a “traitor.” In court documents, Bergdahl’s attorneys contend the soldier has“been made one of the most vilified and hated people in the United States” through mostly false rhetoric.

“Let people make up their own minds instead of having this all behind a curtain,” Bergdahl’s civilian attorney Eugene R. Fidell has said, explaining he had urged the Army to release the documents as early as February 2015.

The documents include the 371-page transcript of an interview Bergdahl gave to an Army general investigating his case in August 2014, about three months after his release from the Taliban, and an evaluation from an Army Sanity Board that determined the soldier was suffering from mental health issues when he walked off his remote combat outpost in eastern Afghanistan in 2009.

The release of the transcript and evaluation on Wednesday is the latest effort by Bergdahl’s attorneys to promote their version of the former captive’s story to the American public. A version that depicts their client, not as a deserter, but as a delusional young soldier who thought he was doing the right thing.

Military law experts said the publicity is designed to ensure Bergdahl is able to get a fair trial and, perhaps, pressure the prosecution into bargaining for a favorable plea deal.

“One tactic they seem to be using is to just keep it in the public’s eye,” said Victor Hansen, a former Army lawyer who is now an associate law professor at the New England School of Law. “It’s a way to try and shape the story to their liking and maybe counter some of the negative attention he’s received… that potential jurors see too.”

Bergdahl, who turns 30 later this month, faces charges of desertion and misbehavior before the enemy, which carries a potential life sentence. His trial is scheduled for August at Fort Bragg, N.C., but the dates stand in doubt with litigation stalled as an appellate court decides how to handle some 300,000 pages of classified information in the case. Bergdahl has yet to enter a plea.

The strategy

With no movement toward a trial, Bergdahl’s legal team have begun making their case in recent weeks in the court of public opinion.

Their efforts have included launching a public website containing thousands of pages of court documents and sending a letter, which was widely disseminated in the media, to Donald Trump seeking an interview with Republican presidential candidate who has repeatedly called Bergdahl “a traitor.” Those actions followed conversations that Bergdahl had with a Hollywood producer aired on the popular podcast "Serial."

Bergdahl admitted in the "Serial" podcast and the interview with then-Maj. Gen. Kenneth R. Dahl, who has since been promoted, that he left Observation Post Mest in Afghanistan. The soldier, who was twice promoted during the five years that he was held and tortured in Pakistan, said he had no intention of ditching the Army or meeting with the Taliban. Instead, Bergdahl said he had formulated a “fantastic plan” to cause an incident that would put him face-to-face with a general officer, to whom he hoped to air grievances he had about his chain of command.

Eric Carpenter, an assistant law professor at Florida International University and former Army defense attorney and prosecutor, said changing public perception in the case could pressure the prosecution or the convening authority, the general overseeing the court-martial process, to settle the case before trial.

“With Bergdahl’s story in the public, his attorneys might hope that the convening authority would come to the negotiating table,” he said. “His attorneys might be hoping to get the misbehavior before the enemy charge dropped, or to get Bergdahl a discharge in lieu of court-martial.”

Bergdahl’s lawyers also might be attempting to demonstrate to the prosecution that the court-martial “is going to be a painful process,” said Hansen.

The court-martial proceedings could be “a very long” and “very expensive process,” he said. “That puts a higher degree of pain on the government.”

It is also designed to reach potential jurors, Hansen said.

The letter to Trump, Carpenter said, is possibly designed to weed out potentially biased jurors.

“It is unlikely that the military judge will order Trump to give a deposition, but the military judge will likely allow the defense to question panel members about Trump’s comments,” he said. “… If a panel member thinks before hearing evidence that Bergdahl is a traitor, the defense can” request the prospective juror be dismissed.

The new documents

Bergdahl’s attorneys had sought to release the interview transcript with Dahl and an unclassified summary of the Army investigation into Bergdahl’s case since a preliminary hearing in the fall. The Army, through a court order, had not previously allowed them to release the documents.

It is still not clear whether the investigation summary will be released, which Bergdahl’s lawyers have said would disprove rumors that any servicemembers were killed searching for their client.

The interview transcript indicates the Army initially only suspected Bergdahl was guilty of the lesser offenses of absent without leave and desertion. The rarely used misbehavior charge came later in the process. Fidell has speculated in court documents that the charge might have been added by commanders who were improperly influenced by political rhetoric from Republican congressmen demanding Bergdahl be punished. Fidell has filed court documents attempting to gain access to correspondence about Bergdahl between the defense secretary’s office and members of Congress.

The misbehavior charge stems from placing troops in danger as they searched for Bergdahl. The Army lawyer who presided over the preliminary hearing, Lt. Col. Mark Visger, confirmed that charge, but he recommended Bergdahl not be imprisoned.

In the transcript, Bergdahl provides long-winded descriptions of his lonely childhood, his social anxiety and his determination to do something meaningful with his life. He tells Dahl that he aimed to one day join Army Special Forces.

Bergdahl acknowledges his own “failure” at having washed out of Coast Guard basic training after a panic attack less than a month into his enlistment. He joined the Army, in part, to prove to himself he could succeed in the military, he said.

But Bergdahl, soon after he enlisted and before deploying to Afghanistan, said he started seeing signs of leadership failure within his battalion. A pre-deployment training rotation to the National Training Center at Fort Irwin, Calif., was boring, filled with little training to prepare him for combat, and marred with higher ranking soldiers ignoring rules, he said.

“I came down to NTC to train as a soldier and I spent the majority of my time cleaning up; picking-up cigarette butts and trash, or sorting through brass,” Bergdahl said.

Dahl, who said the two-day interview was “not an interrogation” but “an informal investigation,” takes a soft approach with Bergdahl, at one point he compliments him.

“You were one of the best soldiers, arguably the best soldier in your platoon,” Dahl said, adding Bergdahl’s service until he left his post “was exemplary.”

But Bergdahl said he had lost complete confidence in his leadership after his battalion commander complained his unit had not shaved after it returned to base following six days stranded on a patrol in which they were hit with roadside bombs and got into firefights with the Taliban.

Bergdahl told Dahl that he saw a lot of behavior as a private first class that he described as “stupid.”

“And I was seeing things heading in a very dangerous direction,” he said. “So, I had to do something. It had to be me doing it. And so I came up, happily with my ignorance of a young – from a young man’s mind and my imagination, I came up with a fantastic plan.”

When he left his post, an Army board later determined, Bergdahl was suffering from the schizotypal personality disorder, which is characterized by discomfort in social situations, disconnection from reality and paranoia, according to the National Library of Medicine.

A ‘resilient guy’

Bergdahl remains on active duty, assigned to an administrative desk job at Joint Base San Antonio, Texas. He has appeared twice before a military judge, but he has not yet determined whether he intends to face a jury panel or leave his fate to the judge, Army Col. Jeffery R. Nance.

The stay in pre-trial litigation could last months, Bergdahl’s lawyers have said. They’ve argued the stall impairs their ability to properly prepare for trial in August. But military law experts don’t necessarily agree.

The trial was unlikely to begin on time in August anyway, said Hansen, the associate law professor at the New England School of Law.

It is not unusual for complex cases, he said, especially high profile ones to be stalled several times.

Noting his previous five-year captivity and repeated torture, Hansen said he doubts Bergdahl will be sentenced to additional prison time.

With the case stalled, Bergdahl and his defense team will likely continue to push to release as much information as possible to the public.

The stall “probably gives the defense more flexibility to push every lever,” he said.

“Bergdahl’s a pretty resilient guy,” Hansen added. “He’s probably happy to assert his rights.”

Twitter: @CDicksteinDC

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Corey Dickstein covers the military in the U.S. southeast. He joined the Stars and Stripes staff in 2015 and covered the Pentagon for more than five years. He previously covered the military for the Savannah Morning News in Georgia. Dickstein holds a journalism degree from Georgia College & State University and has been recognized with several national and regional awards for his reporting and photography. He is based in Atlanta.
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