The Bergdahl Case Gets Curiouser and Curiouser

The odd case of Army deserter Bowe Bergdahl got even weirder during his Article 32 hearing conducted by Army officials Thursday and Friday last week.  The Article 32 procedure is the military equivalent of a civilian grand jury, except that the accused has quite a few more rights.  Unlike a typical grand jury, the Article 32 is presented before a single hearing officer, not held in secret, allows defense counsel to be present and to cross-examine witnesses, and to call their own.  All of this occurred at Bergdahl’s hearing. 

Army prosecutors called Bergdahl’s immediate chain of command to testify.  They established that Bergdahl left his post without orders, but also that Bergdahl had been “great” soldier until his desertion.  Bergdahl’s former platoon leader testified that while he led exhausting patrols to find the soldier following his disappearance, this did not result in the loss of any other troops.   Bergdahl’s former company commander confirmed this.  On cross-examination the platoon leader appeared to agree with Bergdahl’s defense attorney that if the soldier had an attitude problem it was that he felt his superiors were not aggressive enough in fighting the Taliban. 

Back in 2014 Army investigating officer Major General Kenneth Dahl interviewed Bergdahl.  As an active duty soldier Bergdahl could be ordered to sit down for the interview, but might have asserted his 5th Amendment right against self-incrimination, and refused to answer General Dahl’s questions.  Press reports indicated that this did not happen, but also did not reveal the content of the interview.  Since I found it hard to believe that Bergdahl’s attorneys would allow him to speak to the investigating officer unless he essentially had nothing incriminating to say, I assumed he claimed to have no memory of the events that led to his capture by the Taliban, including deserting his Army post.  I was wrong.  

Instead, Bergdahl did incriminate himself, explaining to Dahl that he abandoned his post, but did so because he felt that his superiors were incompetent.  Bergdahl claimed that his intent was to hike the 19 miles between his observation post and the nearest forward operating base in order to inform higher ranking officers there of the situation back at his unit.  Bergdahl left behind his own rifle, considered stealing another soldier’s pistol but thought better of it, and set out unarmed on his mission.  En route he was quickly and easily captured by the Taliban, and then held for five years until he was freed in a controversial exchange for five notorious Taliban terrorist commanders. 

Bergdahl’s attorneys, led by the experienced civilian defense lawyer, Eugene Fidell, managed to present this account to the Article 32 hearing officer without calling their client to the stand and subjecting him to cross-examination.  Instead, they called General Dahl who repeated Bergdahl’s account, and added for good measure that he did not believe Bergdahl deserved to be imprisoned for his offenses.   They also presented witnesses that testified as to Bergdahl’s mistreatment by the Taliban, his suffering at their hands, and the permanent mental and physical injuries he sustained as a result. 

Overall, it appears that Fidell and his team of Army defense lawyers damaged the prosecution and laid the groundwork for a recommendation of leniency by the Article 32 hearing officer.  The defense position is that Bergdahl left his post, but did not desert, since he was on he was on his way to another Army post, and planned to report there.  Thus, at most according to the defense, he is guilty of AWOL, a much less severe offense than desertion and misbehavior before the enemy. It is not clear that the prosecution made a compelling case otherwise.   The hearing officer’s recommendation is not binding on the convening officer, General Robert Abrams, but carries great weight.    

All this was clever lawyering by Bergdahl’s legal team.  Presumably they allowed Bergdahl to convey his story to Dahl back in 2014 calculating that if Dahl bought it, he might recommend not going forward with the prosecution.  That Fidell has been calling for the Army to release Dahl’s investigative report, suggests that the general either made such a recommendation, or was extremely ambivalent about going forward.   Even if, as was the case, the Army did move to prosecute, Fidell figured on calling Dahl to the stand as a way of having Bergdahl in effect “testify” without risking a damaging cross-examination. 

All of this raises the question of whether or not anything Bergdahl told Dahl was in fact true.  Unless Bergdahl is exposed to cross-examination, and perhaps even then, it might be pretty hard for the Army to rebut his account. 

But even if it is true, the Army should not accept that desertion (or leaving one’s combat post) by soldiers who disagree with their “incompetent” commanders is a minor offense.  Anyone who has been in any army knows that many, if not most soldiers at any given time believe their officers and NCOs to be incompetent fools.  Not infrequently, this is true, as it has been throughout history. If it wasn’t, there would be no great military novels or films, mostly written by former soldiers smarter and more eloquent than their former superiors.  However, all militaries count on these “fools” to run the show, there being nobody else to do so.  Were the Army to cut Bergdahl a break because he was also a fool to have left his post, it would be tantamount to sanctioning such action in the future, which undermines the very essence of military discipline. 

Lastly, is the uncomfortable but compelling suspicion that this entire fiasco is a setup that will allow the Army to escape the Bergdahl case without embarrassing President Obama, who not only traded the Taliban terrorists for the soldier, but feted his family and proclaimed him a hero.    Watching relatively inexperienced Army prosecutors blow a case against accomplished civilian defense lawyers is not entirely unusual.  As a young JAG officer I was perhaps so victimized myself, and definitely saw it occur in other cases.  The old saying that military justice is like military music -- not particularly good -- has some basis in reality.   But it is also possible that the Army deliberately made it easy on Fidell and his team, and seeing a shadow boxing loss at the Article 32 as a political win. 

Article 32 hearings are a good way for the military to dispose of cases that they don’t like, since they give the appearance of having brought the manner to a mini-trial and are comparatively fair compared to civilian grand juries.  At least as reported, Bergdahl’s Article 32 doesn’t appear to have made a good case against him for anything more than an AWOL charge, which I think would suit the Army just fine.  It would allow the Army to dispose of the case through something less than a General Courts Martial, preserve Bergdahl’s veteran benefits for his apparent physical and psychological disabilities, and not extend the matter into the election year, embarrassing Obama and his increasingly likely successor as Democrat nominee, Vice-President Biden.  Call me cynical, but I think that is where we are headed.

The odd case of Army deserter Bowe Bergdahl got even weirder during his Article 32 hearing conducted by Army officials Thursday and Friday last week.  The Article 32 procedure is the military equivalent of a civilian grand jury, except that the accused has quite a few more rights.  Unlike a typical grand jury, the Article 32 is presented before a single hearing officer, not held in secret, allows defense counsel to be present and to cross-examine witnesses, and to call their own.  All of this occurred at Bergdahl’s hearing. 

Army prosecutors called Bergdahl’s immediate chain of command to testify.  They established that Bergdahl left his post without orders, but also that Bergdahl had been “great” soldier until his desertion.  Bergdahl’s former platoon leader testified that while he led exhausting patrols to find the soldier following his disappearance, this did not result in the loss of any other troops.   Bergdahl’s former company commander confirmed this.  On cross-examination the platoon leader appeared to agree with Bergdahl’s defense attorney that if the soldier had an attitude problem it was that he felt his superiors were not aggressive enough in fighting the Taliban. 

Back in 2014 Army investigating officer Major General Kenneth Dahl interviewed Bergdahl.  As an active duty soldier Bergdahl could be ordered to sit down for the interview, but might have asserted his 5th Amendment right against self-incrimination, and refused to answer General Dahl’s questions.  Press reports indicated that this did not happen, but also did not reveal the content of the interview.  Since I found it hard to believe that Bergdahl’s attorneys would allow him to speak to the investigating officer unless he essentially had nothing incriminating to say, I assumed he claimed to have no memory of the events that led to his capture by the Taliban, including deserting his Army post.  I was wrong.  

Instead, Bergdahl did incriminate himself, explaining to Dahl that he abandoned his post, but did so because he felt that his superiors were incompetent.  Bergdahl claimed that his intent was to hike the 19 miles between his observation post and the nearest forward operating base in order to inform higher ranking officers there of the situation back at his unit.  Bergdahl left behind his own rifle, considered stealing another soldier’s pistol but thought better of it, and set out unarmed on his mission.  En route he was quickly and easily captured by the Taliban, and then held for five years until he was freed in a controversial exchange for five notorious Taliban terrorist commanders. 

Bergdahl’s attorneys, led by the experienced civilian defense lawyer, Eugene Fidell, managed to present this account to the Article 32 hearing officer without calling their client to the stand and subjecting him to cross-examination.  Instead, they called General Dahl who repeated Bergdahl’s account, and added for good measure that he did not believe Bergdahl deserved to be imprisoned for his offenses.   They also presented witnesses that testified as to Bergdahl’s mistreatment by the Taliban, his suffering at their hands, and the permanent mental and physical injuries he sustained as a result. 

Overall, it appears that Fidell and his team of Army defense lawyers damaged the prosecution and laid the groundwork for a recommendation of leniency by the Article 32 hearing officer.  The defense position is that Bergdahl left his post, but did not desert, since he was on he was on his way to another Army post, and planned to report there.  Thus, at most according to the defense, he is guilty of AWOL, a much less severe offense than desertion and misbehavior before the enemy. It is not clear that the prosecution made a compelling case otherwise.   The hearing officer’s recommendation is not binding on the convening officer, General Robert Abrams, but carries great weight.    

All this was clever lawyering by Bergdahl’s legal team.  Presumably they allowed Bergdahl to convey his story to Dahl back in 2014 calculating that if Dahl bought it, he might recommend not going forward with the prosecution.  That Fidell has been calling for the Army to release Dahl’s investigative report, suggests that the general either made such a recommendation, or was extremely ambivalent about going forward.   Even if, as was the case, the Army did move to prosecute, Fidell figured on calling Dahl to the stand as a way of having Bergdahl in effect “testify” without risking a damaging cross-examination. 

All of this raises the question of whether or not anything Bergdahl told Dahl was in fact true.  Unless Bergdahl is exposed to cross-examination, and perhaps even then, it might be pretty hard for the Army to rebut his account. 

But even if it is true, the Army should not accept that desertion (or leaving one’s combat post) by soldiers who disagree with their “incompetent” commanders is a minor offense.  Anyone who has been in any army knows that many, if not most soldiers at any given time believe their officers and NCOs to be incompetent fools.  Not infrequently, this is true, as it has been throughout history. If it wasn’t, there would be no great military novels or films, mostly written by former soldiers smarter and more eloquent than their former superiors.  However, all militaries count on these “fools” to run the show, there being nobody else to do so.  Were the Army to cut Bergdahl a break because he was also a fool to have left his post, it would be tantamount to sanctioning such action in the future, which undermines the very essence of military discipline. 

Lastly, is the uncomfortable but compelling suspicion that this entire fiasco is a setup that will allow the Army to escape the Bergdahl case without embarrassing President Obama, who not only traded the Taliban terrorists for the soldier, but feted his family and proclaimed him a hero.    Watching relatively inexperienced Army prosecutors blow a case against accomplished civilian defense lawyers is not entirely unusual.  As a young JAG officer I was perhaps so victimized myself, and definitely saw it occur in other cases.  The old saying that military justice is like military music -- not particularly good -- has some basis in reality.   But it is also possible that the Army deliberately made it easy on Fidell and his team, and seeing a shadow boxing loss at the Article 32 as a political win. 

Article 32 hearings are a good way for the military to dispose of cases that they don’t like, since they give the appearance of having brought the manner to a mini-trial and are comparatively fair compared to civilian grand juries.  At least as reported, Bergdahl’s Article 32 doesn’t appear to have made a good case against him for anything more than an AWOL charge, which I think would suit the Army just fine.  It would allow the Army to dispose of the case through something less than a General Courts Martial, preserve Bergdahl’s veteran benefits for his apparent physical and psychological disabilities, and not extend the matter into the election year, embarrassing Obama and his increasingly likely successor as Democrat nominee, Vice-President Biden.  Call me cynical, but I think that is where we are headed.