No News is Bad News in the Bergdahl Case

Perhaps the most obvious sign that the Bowe Bergdahl desertion case has been irrevocably corrupted by President Obama’s improper (and illegal) command influence is the unexplained and inordinate delays in processing and completing the case. As I explained here, military justice generally differs from the civilian model in its alacrity, because the military’s mission requires that criminal cases be handled honestly but swiftly, lest good order and discipline disappear. This is especially true in the case of pure military offenses, like those against Bergdahl. 

It has been over a month since Bergdahl’s attorneys leaked the results of the Article 32 hearing in his case (this being the military version of a grand jury.) The recommendation went to General Robert Abrams the convening authority for disposition. Although the Bergdahl case is actually a relatively simple affair on the charges (desertion and misbehavior before the enemy) and the facts, Abrams has yet to make a decision on the matter. This follows a disturbing pattern wherein this case has featured long delays at every step, as Army officials obviously try to square Obama’s stated preferences (and ego) with military justice. 

Long after Bergdahl was ransomed from the Taliban in a controversial exchange with terrorist leaders, the Pentagon ordered an investigation of the circumstances of his apparent desertion. The investigating officer, Major General Kenneth Dahl, interviewed Bergdahl and evidently bought the soldier’s improbable self-serving story that he left his post without the intent to desert or aid the enemy, but to hike nearly twenty miles to the closest friendly Army post and turn in his superiors for incompetence. Dahl recommended leniency to his superior at the time, General Mark Miley, the current Army Chief of Staff.  

After another very long and unexplained delay, Miley surprisingly threw the book at Bergdahl, formally charging him with desertion and misbehavior before the enemy, and sent the case to the Article 32 hearing. Miley’s decision was puzzling, as noted here, but with the results of the Article 32 known, and the case now languishing before General Abrams, it’s possible to draw a very probable conclusion about what is, and has been going on in the case.

After Dahl came out with his recommendation of leniency, the Army and Bergdahl’s attorneys led by the very capable Eugene Fidell, entered plea negotiations. It’s hard to say what the Army wanted in a plea at this juncture, but I have a good idea what Fidell demanded -- that Bergdahl plead guilty only to a 24-hour AWOL (which he admitted to Dahl), be punished by some limited term of restriction (which would count as time served) and then be discharged honorably. An honorable discharge would not only preserve the Obama administration’s fiction that Bergdahl served “with honor and distinction” but ensure he receives back pay and benefits, and also allow Bergdahl and his representatives to make a much stronger pitch for the lucrative book and movie deals which are no doubt in the works. The Army might have wanted Bergdahl, as part of a plea agreement, to give up profiting from such deals, but it would have been hard to argue for that, if it also agreed to discharge him honorably. The Army evidently was unwilling roll over on the issue at that time, I hope at least in part because it saw that giving Bergdahl an honorable discharge would devalue the discharges issued to millions of proud veterans living and deceased. When negotiations broke down Miley sought to increase the Army’s leverage by throwing the maximum (and fully justified) charges at Bergdahl, and then having rid himself of the burden personally, took his position as Chief of Staff.   

That strategy backfired when the Article 32 hearing turned disastrous for the Army. With the Article 32’s relaxed rules of evidence, Fidell called Dahl to testify and was able to present Bergdahl’s testimony to the court without subjecting the soldier to cross-examination. The prosecution for its part put on a bare-bones and tepid case, and the result was another recommendation of leniency by the Article 32 hearing officer, who suggested that Bergdahl be essentially tried in misdemeanor court (Special, not General Courts Martial) and not face jail time.  The one piece of leverage the Article 32 officer retained for the Army is that a Special Courts Martial can issue a bad conduct discharge to a convicted soldier (a punitive discharge not as severe as a dishonorable discharge), or less harsh general discharges (under honorable or other-than-honorable conditions.) So Bergdahl would still be at risk on that critical issue if the Army went forward on the recommendation. General Abrams is not bound to accept the recommendation of the Article 32 officer, but it is unusual for a convening authority not to do so. 

The situation as it stands is that Bergdahl and his attorneys have almost certainly not backed down from their demands that the soldier plead only to AWOL, receive back pay and benefits plus the honorable discharge. I doubt that the Army much cares about jail time, pay or benefits, but giving Bergdahl an honorable discharge would severely damage the credibility of the military justice system, and would probably stick in the craw of even the most sycophantic and politically sensitive officers. 

The Army can easily solve its problem by simply trying Bergdahl on the charges (at a Special or General Courts Martial) and leave the case to a military judge or jury.  It is not a particularly complex case, and the evidence against Bergdahl, absent his potentially exculpatory testimony is strong. Fidell would then face the dilemma of seeing his client go down, or putting him on the stand to suffer a potentially destructive and embarrassing cross-examination (assuming the Army can find a decent prosecutor to do it.) Up to this time Fidell has managed to get his client’s version of the facts out without subjecting him to cross-examination, but he cannot do that at an actual trial. 

The problem for the Army, as Fidel plainly knows, is that it is loath to bring Bergdahl to trial, much less humiliate and convict him of desertion and misbehavior before the enemy, because that would also humiliate and embarrass President Obama. So the case is in abeyance, in a Mexican standoff of sorts. The Army can cut the Gordian knot simply by going forward with the charges, but Fidell knows that is the last thing it wants. And as long as Fidell is confident of that, there is no reason for him to back off his maximum demands in the case, which no doubt includes an honorable discharge for his client. It is in sum, a dishonorable state of affairs, and for that, as for much else that currently ails the country, we can thank the president.