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Experts downplay significance of a Bergdahl court-martial trial

By NANCY MONTGOMERY | STARS AND STRIPES Published: December 15, 2015

Military law experts cautioned against reading too much into an Army commander’s decision to send Sgt. Bowe Bergdahl to trial at a general court-martial rather than to follow a recommendation that would have limited penalties and losses.

“What this does is keep options open for the Army,” said Zachary Spilman, a Marine Corps Reserve lawyer and lead writer of a military justice blog.

In a decision announced Monday, Gen. Robert Abrams, commander of the U.S. Forces Command at Fort Bragg, ruled that Bergdahl, 29, should be sent to a general court-martial, where he theoretically faces a sentence of up to lifetime imprisonment if convicted on the misconduct charge and up to five years for the desertion charge.

“I think this case is all about whether he’s responsible for his own captivity,” Spilman said. “I think the crucial question is was he a prisoner of war or not? I get the feeling that Army leadership doesn’t want to make that decision alone. They want a trial to figure that out.”

But that trial, to be held at Fort Bragg, N.C., is apparently a long way off.

Army prosecutors say they won’t be ready to proceed for months, said Eugene Fidell, Bergdahl’s chief defense lawyer. One prosecutor, according to Fidell, said the government wouldn’t be ready until May; another said it wouldn’t be ready until Oct. 31.

Other military lawyers responded with dismay at the possibility of such a delay. Generally, they said, the government should be ready to proceed to trial shortly after a case is referred to court-martial.

“This seems like an inordinately long delay to get a desertion case to trial,” said retired Col. Don Christensen, formerly the Air Force’s top prosecutor. “The government’s facts are pretty straightforward, and since Bergdahl has done a lengthy interview [with Army investigators], the government shouldn’t be surprised by his defense. Setting aside the politics, this is a pretty simple case.”

Lt. Col. Mark Visger in October recommended that Bergdahl, who spent five years captive to the Taliban and is said to face a lifelong of health problems as a result, should be tried at a special court-martial on charges of desertion and misconduct. Penalties for convictions at those trials, on charges usually analogous to what would be misdemeanors in civilian court, are capped at a year in prison and a bad-conduct discharge.

Visger, a lawyer who presided over Bergdahl’s Article 32 probable-cause hearing in September, also recommended that Bergdahl, who his defense said had been diagnosed with psychological problems, should be spared from imprisonment and a punitive discharge, according to Bergdahl’s defense.

According to Spilman, the Marine Corps Reserve lawyer, a discharge arising from a general court-martial results by federal law in no benefits through the Department of Veterans Affairs

“What the decision says is that Gen. Abrams doesn’t believe Bergdahl is innocent enough to be spared these possible consequences,” Spilman said. “If he deserted and he’s responsible for his capture, should he rate VA benefits?”

But drawing conclusions on what might happen is premature, lawyers said.

“The potential penalties are worse, but there’s no guarantee that he’ll get a more severe punishment,” said Victor Hansen, a professor at New England Law in Boston. “There’s no minimum floor. A general court-martial can give any range of punishment, or no punishment.”

The former Army lawyer speculated that Abrams “feels he has to send more of a message ... and let the process work its way through.”

Abrams could commute any sentence reached at court-martial; so could the secretary of the Army, Spilman said.

“It seems unlikely to me anybody’s going to put him in the brig,” he said.

The case has been a political lightning rod since the Obama administration released five Taliban members held at Guantanamo Bay, Cuba, to Qatar, in exchange for Bergdahl's release. Republican lawmakers have asserted that Obama overstepped his powers by not notifying Congress of the exchange until it was completed.

Since then, Bergdahl has been disparaged as a “traitor” who caused the deaths of six troops who searched for him. Testimony at the Article 32, however, indicated that no one had been killed and that Bergdahl had behaved honorably while captive, despite beatings, isolation and starvation.

Republican presidential candidate Donald Trump has repeatedly called for Bergdahl to be executed. Several weeks ago, Sen. John McCain, R-Ariz., chairman of the Senate Armed Services Committee, promised an investigation if Bergdahl were not tried at court-martial. Late last week, Republicans in the House Armed Services Committee said the congressional committee would monitor the case and “ensure that standard procedures are properly implemented and administered.”

Fidell called that a “veiled dog whistle” and said that individual cases in the military justice system should not be politicized.

“It’s none of their business how this case is handled,” he said.

Abrams’ decision to disregard the hearing officer’s recommendation is not especially unusual; commanders often do so, Christensen said. “I’m certain no one tracks such a statistic, but it happens frequently,” he said.

Christensen prosecuted a child murder case some years ago, for instance, in which the hearing officer recommended dismissing the case, saying there was no evidence that the suspect, the child’s father, had committed a crime. “The convening authority disagreed and (the father) was convicted of murder,” he said.

montgomery.nancy@stripes.com
 

In this photo provided by attorney Eugene R. Fidell, Sgt. Bowe Bergdahl prepares to be interviewed by Army investigators in August 2014.
COURTESY OF EUGENE R. FIDELL

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