Bergdahl and the Threat to American Democracy

There is increasing and ever more strident doubt in the country over whether the Army is properly processing the case of Sergeant Bowe Bergdahl.  Even if, despite the fears of many, the Army has acted appropriately in the matter, there is a growing appearance of impropriety, deriving from the suspicion that Army officers are under pressure from the Obama administration to go easy on Bergdahl.  As our republic is largely founded on the proposition that the military must remain free of political suasion and entanglements, even the appearance of such influence is gravely damaging to American democratic values.  This is especially true when it appears in infamous cases, such as Bergdahl’s or the prior case of former Army major Nidal Hasan, the radical Islamist Fort Hood killer.   

To briefly recap: the Taliban captured Bergdahl (then a private) after he – at the very least – went AWOL from his post in Afghanistan, later exchanging him for five high-ranking Taliban commanders in American custody, at least one of whom has already returned to the fight.  Nonetheless, Bergdahl’s exchange last May was presented as a victory for American values by President Obama, who personally feted his parents at the White House, while administration functionaries hailed Bergdahl as a hero.  Since then, the Army has been secretively investigating the circumstances of Bergdahl’s disappearance and capture but has yet to publicly announce whether the soldier will be prosecuted. 

From a purely legal standpoint the Bergdahl case is problematic.  The exact circumstances of Bergdahl’s disappearance are either unknown or presumably based on Bergdahl’s own account given to Army investigators.  To convict Bergdahl of desertion, the Army would have to prove beyond a reasonable doubt that he intended to permanently abandon his post.  Usually, this can be proved by showing that the soldier went off elsewhere and failed to return to duty after a month or so, suggesting that there was no intention to return.  But after Bergdahl went off, he either was quickly captured or went over to the enemy – which would be treason to boot.  While there appears to be circumstantial evidence to support charges of desertion and perhaps treason (and there may be more that hasn’t been made public), the case could be difficult to prove without a confession or at least damaging admission from Bergdahl. 

Be that as it may, the determination needs to be made as a matter of military law and properly implemented.  That is, either Army prosecutors are confident that they can make out a case for desertion or they are not.  If they are confident, then the convening authority ought to prosecute.  If they are not, then the convening authority must decide whether it is in the overall interest of the Army to pursue the case anyway, to vindicate military values and rules, even at the risk of an acquittal. 

The Army has both a duty and a clear interest in prosecuting cases with alacrity.  Sometimes this is because a soldier is in confinement – not the case with Bergdahl – and constitutional speedy trial considerations kick in.  But even when this is not the case, justice delayed is not justice served, and this is particularly true in the military setting, where all ranks need to know what will be tolerated and what will not.  I was hounded as an Army prosecutor by mid-level JAGs above me to push my cases along as quickly as possible.  While I suspect this was partly because these majors and lieutenant colonels just needed something to do, it also served a purpose by showing both the command and the rank and file that military justice was taken seriously. 

While this case might be difficult, it does not appear to be enormously complex.  By the Army’s own account, the investigation has concluded and is with the convening authority, Army General Mark Milley.  He ought to be able to make a decision.  Failing to do so suggests to many that he is under political pressure. 

Given President Obama’s clear views on the case, this is not idle speculation.  The president is notoriously touchy and clearly has a dog in this fight.  Having proclaimed Bergdahl a hero, honored his parents, and paid a dear price for this soldier’s freedom, having Bergdahl put in the dock for desertion (or worse) would be yet another humiliation for Obama. 

Plus, there is precedent for believing that the administration is not above interfering in military justice matters.  The Army, clearly following Obama’s preferences, if not dictates, still refuses to call the massacre perpetrated by Islamic terrorist Nidal Hasan anything other than workplace violence, thus despicably dishonoring Hasan’s victims and making a mockery of the truth.  Hasan’s prosecution was also troublesome.  The Army insisted on bringing him to trial after huge delays, even though Hasan probably would have pled guilty.  Officially, the reason was that the Army wanted to pursue the death penalty in the case and could not do so if it agreed to a plea with Hasan.  But since the likelihood of Hasan ever being put to death is low (the military has not executed anybody since 1961), this rationale is unconvincing.  Rather, it seems that a guilty plea would have undermined the Army’s positon of the nature of Hasan’s crimes, which it desperately wanted to avoid out of the same political correctness that consumes Obama.

Most recently, credible reports have surfaced that Army prosecutors have prepared charges against Bergdahl for desertion, but that General Mark Milley is sitting on them.  Pentagon spokesmen have denied the reports but done so in the squirrelly, shifty fashion of Obama’s professional spinners, only enhancing suspicions that the fix is in. 

No knowledgeable person actually believes that Obama directly ordered Milley not to prosecute (or to dilute charges).  That would be patently illegal command influence, which Obama isn’t foolish enough to risk.  But given Obama’s clear preferences in the case, and the way he has successfully seeded much of the military with civilian officials and purged uniformed officers who are unwilling to do his bidding, it is not hard to imagine that enormous pressures have been brought to bear on General Milley short of prosecutable command influence.

Even giving the Army the benefit of the doubt, and taking the Pentagon’s denials at face value, the failure to move on the Bergdahl matter (taken in conjunction with the Fort Hood case) has already created the impression that the critical barrier between the military and civilian leadership has been breached.  Rising officers will take their cue from this, assuming that for the good of their careers it would be foolish to remain apolitical, as opposed to accommodating the politics of civilian leaders.  As with so much else Obama has done, this moves the United States one step further toward becoming a gigantic banana republic, its military no longer in the service of the people.