Who's Really Guilty in the Bergdahl Case?

No matter the actual truth in the Bowe Bergdahl case, one thing is certain -- the Obama administration has made a complete hash of the matter, badly damaged the Army, American credibility, and security, and possibly Bergdahl himself. Bergdahl’s recent Article 32 hearing, and in particular the testimony of Major General Kenneth Dahl (who served as the investigating officer in the case) offers the public the first coherent account of Bergdahl’s side, other than the Administration’s line that he was captured while serving with “distinction and honor.” But whether one accepts Dahl’s evaluation of Bergdahl as a confused, poorly adjusted idealist who doesn’t deserve further punishment, or that of his enlisted comrades who see him as a traitor, the real villain of the piece is the Obama administration, which hatched the deal that freed Bergdahl and created the media and legal circus that this case has become.   

Quite obviously, this administration has a penchant for rolling over in negotiations with Islamist radicals, be it Iranian mullahs or Taliban warlords. Thus, Bergdahl would not now vex his Army superiors and much of the country had the Obama administration not negotiated a terribly flawed and unequal deal with his Taliban captors. It’s highly odd and ironic that in agreeing to exchange the soldier for five notorious and dangerous Taliban terrorists, administration supporters cited Israel, which has frequently engaged in unequal exchanges for captured soldiers. Obama’s dislike of Israel and its leadership runs so deep, that administration officials are now claiming that the president has “been at his toughest in fighting” not Iran or America’s enemies, but Israeli Prime Minister Netanyahu.  In any case, as I argued here, Israel is not a good model for the United States when it comes to prisoner exchanges.  It is the small nation of a people with a long and fraught history, not a young continental superpower. 

Following Bergdahl’s release, the White House feted his parents and more or less called Bergdahl a hero. The administration now claims that the Rose Garden meeting with Bergdahl’s Koran-quoting dad was an unplanned off the cuff decision that generated “bad optics.” Yet it was consistent with Obama’s embrace of anything that appears to put Islam in a good light, and typical as well of the administration’s disregard, and even contempt for traditional values, including military ones. It was no secret at the time that Bergdahl left his unit under questionable circumstances and so might well be something less than a hero. Either the White House did not consider this an issue, or was seen as a way to show the president’s insouciance when it comes to matters that the military, or those “that cling to religion and guns”, still hold dear.  

The White House also did not recognize that the president, because he is the commander-in-chief, must be careful not to influence military legal proceedings, which he nonetheless very clearly did, by displaying his clear sympathy for Bergdahl and his family. This put the Army in a difficult situation when it had to address the question of Bergdahl’s disappearance from his unit, which all the evidence at the time (and now) suggests was voluntary and thus criminal under military law. 

Processing cases quickly is a military priority, but Bergdahl’s drags on because the Army pauses at every step to consider the political ramifications of going forward, while Bergdahl has lawyered up with one of the country’s top experts on military justice.  It took many months for Dahl to complete his investigation, perhaps because it was a difficult case, but also leaving the impression, rightly or not, that he was considering more than the facts. Bergdahl gave Dahl an account of his disappearance in which he admitted to going AWOL for a day before being captured by the Taliban. If you believe Bergdahl, the soldier is guilty of nothing more than a 24-hour AWOL, a relatively minor offense often disposed of in the Army through non-judicial punishment and a few days of confinement.    

Dahl believed Bergdahl, which raises the question of why there was an Article 32 hearing at all, if the investigating officer felt that Bergdahl’s offenses were not worthy of a General Courts Martial. The officer who decided to charge Bergdahl and send the case to the Article 32 was General Mark A. Milley, now the new Army Chief of Staff. Milley’s decision is puzzling. Why didn’t he follow what one must now presume was Dahl’s recommendation of leniency? Was he afraid that it would have “bad optics”? He was in the running for COS at the time, and going easy on Bergdahl presumably would have pleased Obama, but also would have been very obvious and embarrassing to both of them once he was appointed. Did he go the other way, with the administration’s subtle blessing, confident that in the end the Article 32 would go nowhere?

That Article 32 hearing, concluded last week, supports such suspicions. Army prosecutors put on a very weak case in support of the charges against Bergdahl. Because defense counsel are present at Article 32 hearings and can cross-examine government witnesses, Army prosecutors do have to be careful not to expose too much at such hearings. Also, the standard of proof is lower than at a full trial. On the other hand, the prosecution’s primary mission at an Article 32 is to get to a courts martial on all charges, and accounts of the proceedings in this case appear to make that doubtful. Prosecutors chose not to call any of Bergdahl’s enlisted comrades who had a very different impression of the soldier than the one he gave Dahl many years after abandoning his post. They also did not call any witnesses to support the case that the Army lost men trying to recover Bergdahl. Meanwhile, calling Dahl, the defense put on a compelling case that Bergdahl, indeed, is guilty of nothing more than being an idealistic knave who went AWOL.

Perhaps that is true. Whatever the truth, the Obama administration, through its negligent -- or worse --handling of the matter has put, and is putting Bergdahl, the Army, and the country through unnecessary torment. Had Obama kept his nose out of it after the exchange and let the Army do its duty, then Bergdahl might now be long gone from the national consciousness. Instead, the Army has still not cut the Gordian Knot of the case. The new convening authority, General Robert Abrams, will have to await what promises to be a tepid recommendation either way from the Article 32 officer, and then either dispose of the case non-judicially -- which will bring a firestorm of protest and damage the Army further -- or proceed with a weak prosecution, which will likely have the same result. 

No matter what happens, a large chunk of the military and general public will not believe that justice has been done. And most ironic of all, if Bergdahl was indeed telling the truth to Dahl, justice won’t have been done for him either. He can thank the president for that.  

No matter the actual truth in the Bowe Bergdahl case, one thing is certain -- the Obama administration has made a complete hash of the matter, badly damaged the Army, American credibility, and security, and possibly Bergdahl himself. Bergdahl’s recent Article 32 hearing, and in particular the testimony of Major General Kenneth Dahl (who served as the investigating officer in the case) offers the public the first coherent account of Bergdahl’s side, other than the Administration’s line that he was captured while serving with “distinction and honor.” But whether one accepts Dahl’s evaluation of Bergdahl as a confused, poorly adjusted idealist who doesn’t deserve further punishment, or that of his enlisted comrades who see him as a traitor, the real villain of the piece is the Obama administration, which hatched the deal that freed Bergdahl and created the media and legal circus that this case has become.   

Quite obviously, this administration has a penchant for rolling over in negotiations with Islamist radicals, be it Iranian mullahs or Taliban warlords. Thus, Bergdahl would not now vex his Army superiors and much of the country had the Obama administration not negotiated a terribly flawed and unequal deal with his Taliban captors. It’s highly odd and ironic that in agreeing to exchange the soldier for five notorious and dangerous Taliban terrorists, administration supporters cited Israel, which has frequently engaged in unequal exchanges for captured soldiers. Obama’s dislike of Israel and its leadership runs so deep, that administration officials are now claiming that the president has “been at his toughest in fighting” not Iran or America’s enemies, but Israeli Prime Minister Netanyahu.  In any case, as I argued here, Israel is not a good model for the United States when it comes to prisoner exchanges.  It is the small nation of a people with a long and fraught history, not a young continental superpower. 

Following Bergdahl’s release, the White House feted his parents and more or less called Bergdahl a hero. The administration now claims that the Rose Garden meeting with Bergdahl’s Koran-quoting dad was an unplanned off the cuff decision that generated “bad optics.” Yet it was consistent with Obama’s embrace of anything that appears to put Islam in a good light, and typical as well of the administration’s disregard, and even contempt for traditional values, including military ones. It was no secret at the time that Bergdahl left his unit under questionable circumstances and so might well be something less than a hero. Either the White House did not consider this an issue, or was seen as a way to show the president’s insouciance when it comes to matters that the military, or those “that cling to religion and guns”, still hold dear.  

The White House also did not recognize that the president, because he is the commander-in-chief, must be careful not to influence military legal proceedings, which he nonetheless very clearly did, by displaying his clear sympathy for Bergdahl and his family. This put the Army in a difficult situation when it had to address the question of Bergdahl’s disappearance from his unit, which all the evidence at the time (and now) suggests was voluntary and thus criminal under military law. 

Processing cases quickly is a military priority, but Bergdahl’s drags on because the Army pauses at every step to consider the political ramifications of going forward, while Bergdahl has lawyered up with one of the country’s top experts on military justice.  It took many months for Dahl to complete his investigation, perhaps because it was a difficult case, but also leaving the impression, rightly or not, that he was considering more than the facts. Bergdahl gave Dahl an account of his disappearance in which he admitted to going AWOL for a day before being captured by the Taliban. If you believe Bergdahl, the soldier is guilty of nothing more than a 24-hour AWOL, a relatively minor offense often disposed of in the Army through non-judicial punishment and a few days of confinement.    

Dahl believed Bergdahl, which raises the question of why there was an Article 32 hearing at all, if the investigating officer felt that Bergdahl’s offenses were not worthy of a General Courts Martial. The officer who decided to charge Bergdahl and send the case to the Article 32 was General Mark A. Milley, now the new Army Chief of Staff. Milley’s decision is puzzling. Why didn’t he follow what one must now presume was Dahl’s recommendation of leniency? Was he afraid that it would have “bad optics”? He was in the running for COS at the time, and going easy on Bergdahl presumably would have pleased Obama, but also would have been very obvious and embarrassing to both of them once he was appointed. Did he go the other way, with the administration’s subtle blessing, confident that in the end the Article 32 would go nowhere?

That Article 32 hearing, concluded last week, supports such suspicions. Army prosecutors put on a very weak case in support of the charges against Bergdahl. Because defense counsel are present at Article 32 hearings and can cross-examine government witnesses, Army prosecutors do have to be careful not to expose too much at such hearings. Also, the standard of proof is lower than at a full trial. On the other hand, the prosecution’s primary mission at an Article 32 is to get to a courts martial on all charges, and accounts of the proceedings in this case appear to make that doubtful. Prosecutors chose not to call any of Bergdahl’s enlisted comrades who had a very different impression of the soldier than the one he gave Dahl many years after abandoning his post. They also did not call any witnesses to support the case that the Army lost men trying to recover Bergdahl. Meanwhile, calling Dahl, the defense put on a compelling case that Bergdahl, indeed, is guilty of nothing more than being an idealistic knave who went AWOL.

Perhaps that is true. Whatever the truth, the Obama administration, through its negligent -- or worse --handling of the matter has put, and is putting Bergdahl, the Army, and the country through unnecessary torment. Had Obama kept his nose out of it after the exchange and let the Army do its duty, then Bergdahl might now be long gone from the national consciousness. Instead, the Army has still not cut the Gordian Knot of the case. The new convening authority, General Robert Abrams, will have to await what promises to be a tepid recommendation either way from the Article 32 officer, and then either dispose of the case non-judicially -- which will bring a firestorm of protest and damage the Army further -- or proceed with a weak prosecution, which will likely have the same result. 

No matter what happens, a large chunk of the military and general public will not believe that justice has been done. And most ironic of all, if Bergdahl was indeed telling the truth to Dahl, justice won’t have been done for him either. He can thank the president for that.