Experts: No early resolution on Bergdahl desertion case
By JON HARPER , MATT MILLHAM AND NANCY MONTGOMERY | STARS AND STRIPES Published: March 26, 2015
Army Sgt. Bowe Bergdahl, promoted twice during absence from his unit in Afghanistan, now faces charges that could bring potential penalties from dishonorable discharge to prison time.
But disposition of the case is likely a long way off, experts said, and at this stage unpredictable.
The Army announced on Wednesday that it would pursue charges of desertion and misbehavior before the enemy against Bergdahl, who spent five years as a captive of the Taliban after allegedly walking away from his post in Afghanistan. The U.S. secured Bergdahl’s release in May 2014 in a controversial prisoner swap for five Taliban prisoners who had been held at Guantanamo Bay, Cuba.
The charges come three months after the Army wrapped up its investigation into the matter and forwarded its findings to Gen. Mark Milley, commanding general of Forces Command, who has general courts-martial convening authority.
But the preferral of charges against Bergdahl is an early step in the military’s judicial process and gives no hint whether the soldier from Idaho will spend any time in prison.
Next, there will be a hearing to investigate the charges against him, known as an Article 32 hearing.
As a Pentagon news release announcing the charges against Bergdahl put it, the hearing is a legal procedure “designed to determine whether there is sufficient evidence to merit a court-martial” and is often compared to a civilian grand jury. One important difference in the military process is that the defendant and defense counsel are present for the hearing and can cross-examine witnesses.
An investigating officer conducts the hearing, looks at evidence and hears from witnesses, then issues a report with recommendations and conclusions to the convening authority. The convening authority can refer the charges to a special or general court-martial, dismiss the charges, or take any other action he or she deems appropriate.
Bergdahl’s Article 32 is expected to take place at Fort Sam Houston, Texas, according to the Pentagon. The government has up to 120 days to arraign Bergdahl on the charges, meaning the hearing is likely to happen in the coming few months.
Though the military justice system does have provisions requiring a speedy trial, that doesn’t mean the trial will happen anytime soon. Motions and other procedures can delay the trial for months or years, as was the case in the trial of Fort Hood shooter Nadal Hasan.
Even the Article 32 can be delayed by such means. Rules for courts-martial require “speedy trial” protections, and the government has 120 days to arraign a suspect at court-martial after charges are first filed or preferred. But the defense and the convening authority can extend that.
Bergdahl also could waive the hearing, but that would deprive him and his defense counsel of seeing the evidence the government has against him.
“I don’t see the benefit in waiving the 32 in this case” said Kyle Fischer, a former Army lawyer who now has a defense practice near Fort Benning, Ga. Bergdahl’s lawyer “will certainly want to see what evidence the government has regarding the Article 99 (misbehavior before the enemy) charge.”
The desertion charge is pretty self-explanatory, Fischer said in a telephone interview Thursday. The Uniformed Code of Military Justice defines desertion as intent to leave a unit “permanently.”
Fellow soldiers have accused Bergdahl of deserting his unit at Combat Outpost Mest-Lalak in Paktika province, and some have said that servicemembers died while searching for him.
Walter Huffman, a former judge advocate general of the Army, said the legal threshold for proving intent is extremely high.
Without a confession from Bergdahl, military prosecutors would need to rely on other witnesses, such as soldiers from his unit and Afghan villagers who may have come in contact with him after he left the U.S. base.
However, misbehavior before the enemy is a rare charge, experts said, and it carries a heavier penalty than desertion.
“It is incredibly rare,” said Zachary Spilman, a former Marine Corps lawyer. “I can’t say when the last prosecution was.
“It does have a higher maximum. In this case, it’s the bigger offense,” Spilman said in a telephone interview Thursday.
Depending on the outcome of the Article 32 hearing, Eugene Fidell, Bergdahl’s attorney, could request that the military simply discharge his client in lieu of a court-martial.
“But given the amount of time spent on this case and the sensitivity of it. I’m not sure the military would agree to do that,” Huffman said. “Part of the reason for seeking a court-martial would be to deter others from this kind of behavior, if he acted as charged.”
In a statement released Wednesday, Fidell said that there have been no plea negotiations.
Bergdahl, who turns 29 on Saturday, remains on active duty and has been working in an administrative position at Fort Sam Houston since he moved out of medical observation last year.
Pentagon spokesman Col. Steve Warren told reporters Thursday that Bergdahl is not under pretrial confinement. He said he did not know if Bergdahl is currently free to leave the base where he’s stationed.
If Bergdahl does go to trial, a military panel — similar to a jury — is likely to decide his fate. The panel could be made up of all officers or a mixture of officers and enlisted members. He could also request a trial by judge alone.
Military panels have erred toward leniency in recent desertion cases, including the high-profile court-martial last month of Marine Cpl. Wassef Hassoun, who was convicted of deserting his unit twice — once in Iraq. Hassoun was sentenced to two years in prison, a dishonorable discharge, and lost pay and rank.
Because military juries have no minimum sentencing guidelines, were Bergdahl found guilty of the charge, he could be sentenced to no punishment — or to life without parole, Spilman said.
Some officials have suggested that the Army should not bring the hammer down on Bergdahl, arguing that his years spent as a militant prisoner were punishment enough.
Bergdahl said in a letter released Thursday by his defense lawyer that he was tortured in the five years he was held captive by the Taliban, beaten with a copper cable as he spent months blindfolded and chained spread-eagle to a bed. He says he suffered from hunger, thirst and serious infections from sores that developed where his hands and feet were bound to the bed.
Stars and Stripes reporter Martin Kuz contributed to this report.