The Bergdahl Fiasco

Update: Today (3/25/15) Bergdahl has been charged:

The U.S. military has charged Army Sgt. Bowe Bergdahl with one count each of desertion and misbehavior before the enemy, officials announced Wednesday afternoon.

The latter count could carry a penalty of life in prison.

The languishing case of Army deserter Bowe Bergdahl continues to raise serious questions about whether the Obama administration is illegally influencing the military justice system. It would not be the first time either, as Obama’s political views on Islam clearly prejudiced and dragged out the prosecution of former Major Nidal Hassan, the Fort Hood terrorist. Both cases bear the marks of improper “command influence” on the military. This is most clearly evident in the tormented and confusing delays in processing both cases, reflective of the Army’s struggle to maintain at least a veneer of objectivity, while marching to Obama’s tune. 

The case against Hasan was cut and dried, but dragged out over two years, at great cost to the victims, the military and the country at large. Hasan was willing to plead guilty to a terror killing early on, but such a plea would have undermined the Army/Obama narrative that the killings were not an act of Islamist terror, but rather “workplace violence.” To accept a plea from Hasan, a military court would have had to hear from Hasan’s own mouth how and why he committed the Fort Hood murders. During this “allocution” Hasan would have undoubtedly announced that he committed the massacre as a “soldier of Allah” just as his business cards stated. Thus, began the ordeal to bring Hasan to a contested trial on the thin grounds that he face the death penalty, making a guilty plea unacceptable. This begged the questions why first, a mere act of “workplace violence” merited the maximum penalty, and second, why getting Hasan the death penalty was at all meaningful, given that he will almost certainly never be executed -- the military not having executed anyone in over fifty years. Ironically, Hasan successfully frustrated the Army’s efforts, firing his attorneys, representing himself, and in the end essentially confessing to the terror act, despite the Army’s best efforts to stop him.

In the Bergdahl case, something similar is happening, though the legal tactics have changed. It is hard to know exactly what is going on, as the Army has effectively stonewalled both the press and Congress. In January, on FOX television’s “The O’Reilly Factor” retired Army Lieutenant Colonel Tony Shaffer claimed that reliable sources told him that Bergdahl would be charged with desertion, though the Army was quick to deny that. Last week on the same program, Shaffer backtracked, and opined that the reason for the delay is that the Army wants Bergdahl to plead guilty to something less than the maximum offense -- desertion in the face of the enemy -- in order to spare the Obama administration the embarrassment of having freed a gaggle of terrorists on his behalf, and feting him and his family as heroes upon his release. This seems to be much more likely, both explaining the delay, and also better fitting President Obama’s agenda, even though that is not supposed to factor at all in military justice deliberations.

But again, the soldier is not cooperating.  Bergdahl is well represented and clearly listening to his attorneys, who probably feel that they can beat the most serious potential charges at trial, and at worst see their client convicted of the minor offenses to which the Army wants him to plead now. This gives Bergdahl little incentive to cop a plea, especially if it would put his eligibility for back pay -- and his ability to pay his attorneys’ fees -- at risk. 

But really, it appears to be even worse than that. Bergdahl has yet to even be charged. So the Army is negotiating a potential plea deal based on potential charges, a ludicrous situation. Why should Bergdahl enter a plea based on nebulous charges that the Army’s convening authority cannot seem to bring himself to execute? Indeed, his attorneys would almost be committing malpractice were they to argue to Bergdahl that he agree to plead guilty to charges that have yet to be formally preferred to a courts martial.   

The Army is negotiating with Bergdahl the way Obama is negotiating with Iran. Iran knows it can walk away from negotiations because Secretary of State John Kerry will beg them to return and offer incentives if they do. Bergdahl’s attorneys likewise will string the Army along indefinitely if they believe that the Army wants a plea deal more than they do. As long as the Army dithers, their client is remains free. Plus, public expectations and emotions wither, including within the potential military jury pool.  And finally, one never knows, as things drag on, whether witnesses and evidence way be lost or otherwise compromised. Delay almost always assists the defense, and the Army is giving Bergdahl and his team a big assist right now. His attorneys would be foolish not to take it.

It’s true that occasionally an accused person will enter a plea before being charged, but in those cases usually there is either overwhelming evidence against the defendant, or the defendant feels guilty and has an emotional and/or moral need to confess. Neither situation pertains in Bergdahl’s situation. His case could be a difficult one for the Army to prove, and he has not evinced a whit of regret or remorse for his actions. He has allowed himself to be portrayed as a victim, and a patriotic soldier still willing to serve his country. At least according to Lieutenant Colonel Shaffer, the “intelligence” Bergdahl supplied to the Army during his single lawyered-up interview proved to be “garbage.” That won’t cause him or his attorneys to alter the narrative of a patriotic victim, just what the Obama team wants. And the Army is playing along. It is not pressuring Bergdahl or his attorneys in any meaningful way to back off that story, because that would make it more difficult for them to sell the easy plea deal they want Bergdahl to sign. 

This is such a despicable and obvious case of political maneuvering that, taken in conjunction with Hasan’s bungled prosecution, it’s hard to see how the military justice system survives undamaged. It’s yet another critical facet of this great republic that Obama will cynically destroy. Not because he even thought enough about it to bother, but simply to avoid another political embarrassment and bolster his soft policy on Islamist terror. Sadly, the Army is complicit, and thus will undermine not only its own system of justice, but the institution itself.