The Army Won’t Try Bergdahl on Obama’s Watch

On Tuesday an Army judge postponed the trial of Sergeant Bowe Bergdahl from August 2016 to February 2017. For those keeping track, this means that Bergdahl’s trial for desertion and misbehavior before the enemy will conveniently take place after Barack Obama leaves office. This will save Obama the embarrassment of seeing Bergdahl court martialed while commander-in-chief, after having traded five powerful and notorious terrorists for the soldier, while his functionaries described Bergdahl has having served “honorably.” And if you think this is just vagaries of the military legal system playing out, I’ve got a nice bridge to sell.  

When the Army announced in December last year that Bergdahl would be tried by a General Courts Martial, many observers cheered the news believing this meant the old Army was stepping up and not being politically cowed. I disagreed at the time, and still do. The decision by General Robert Abrams, the convening authority in the case, came just four days after Bergdahl went public with his story in "Serial", the popular PBS podcast series. Prior to Bergdahl’s appearance on Serial and Abrams’ action, many close observers of the case assumed that the two sides were attempting to work out a plea deal, based on the fact that two Army investigating officers had recommended some degree of leniency in the case. Most probably talks broke down over the nature of discharge Bergdahl would receive in return for some kind of guilty plea, and the soldier then went public with his story to pressure the Army and to pollute the potential jury pool. The Army reacted in kind, throwing the book at Bergdahl, though it seemed until then that this was the last thing it wanted to do.

The reason for the Army’s reluctance was obvious. From the start Obama improperly and repeatedly expressed support for Bergdahl through his feting of Bergdahl’s parents in the Rose Garden after his release, and his defense of the deal with the Taliban that freed the soldier. Omitted by Obama in all this was the fact that Bergdahl fell into the Taliban’s hands by deserting his unit from a combat outpost, putting himself and his fellow soldiers in danger, and possibly causing the death and injury of soldiers and airmen sent out to find or rescue him.  

As commander-in-chief of the military, Obama is not supposed to interpose himself into military justice considerations. But either out of ignorance or political calculation (and most likely both) he did just that. And Army commanders paid attention. They’ve slow walked what is really a pretty simple case. Only after a long delay did the Army conduct and complete a preliminary investigation, which resulted in the first recommendation of leniency. After another long delay the Army conducted a perfunctory Article 32 hearing before a different investigating officer, which resulted in second recommendation of leniency. Then came the likely breakdown in plea negotiations, Bergdahl’s podcast appearances, and Abrams referral to General Courts Martial.

That the Army still isn’t terribly interested in trying Bergdahl became apparent when following Abrams referral of charges in December 2015, it agreed to a trial date in August 2016. In February the case was put on further hold over a defense request for access to classified documents which the prosecution opposed and which was recently decided against the prosecution by the U.S. Army Court of Criminal Appeals. The latest postponement evidently is the result of this ruling so that lawyers for both sides can rummage through 1.5 million pages of documents related to Bergdahl’s desertion, capture, and release. Don’t count on the February 2017 trial date holding firm.

The real question is why the defense needs Army classified documents in the first place? Presumably it relates to Bergdahl’s capture by the Taliban and the military’s efforts to find or free him. But why would any of that be necessary to prove or disprove that Bergdahl improperly left his post and intended not to return?

The Bergdahl case is not especially complex. The military processes thousands of AWOL cases and hundreds of desertion cases every year. And Bergdahl admits to leaving his post without authorization. To additionally prove desertion and misbehavior before the enemy only requires that a jury disbelieve Bergdahl’s excuses for his action -- assuming he testifies at all which is doubtful -- or that his attorneys can present a diminished capacity defense, which they have threatened. Still, even assuming that his attorneys’ can raise this latter defense, it need not have taken nine months for either side to prepare its case (as originally scheduled.) Nor are a million plus government documents about his capture and release obviously relevant to determining his guilt or innocence.

Bergdahl’s story is that he left his post because he believed his commanders were incompetent. He intended to walk to the nearest major outpost -- about 20 miles -- to seek the help of higher ranking officers, when he was captured. So his story is that he did not intend to permanently stay away, or go over to the enemy. Fine -- that is an affirmative defense that he and his attorneys are entitled to make, though it would require Bergdahl to take the stand, a significant risk.

On the other hand, the Army makes a prima facie case (that is a case sufficient to convict the soldier) simply by introducing Bergdahl’s admissions, the testimony of Bergdahl’s fellow soldiers who found his abandoned equipment and had the last conversations with him, and evidence that patrols were sent out in search and rescue missions, thus diverted from their regular missions and placing his fellow soldiers in unnecessary danger.

When I served as an Army JAG officer many years ago, the most important consideration of the command was processing cases quickly, even more important than winning or losing. That’s because in the military, justice delayed is not only justice denied, it is bad for good order and discipline. And since many soldiers are not confined while facing charges, they like Bergdahl, continue to serve in their units. The Bergdahl case turns this principle on its head. When Bergdahl is finally tried in February -- assuming that even happens -- he will have been back in uniform and on duty as a sergeant for nearly three years, more than twice as long as his time in active service before he left his post, and nearly as long as he was in Taliban custody. Not only is that a waste of taxpayer money, and a drain and strain on the unit he’s been assigned to, but his “honorable service” shuffling papers for the nearly three years since his return, will have to be taken into account by those trying him, and thus limit any punishment even if he is convicted -- in addition to any sympathy he earns for his Taliban captivity.   

I am afraid this is not the old Army reasserting itself, but rather the new Army under Obama, protecting Obama.  

On Tuesday an Army judge postponed the trial of Sergeant Bowe Bergdahl from August 2016 to February 2017. For those keeping track, this means that Bergdahl’s trial for desertion and misbehavior before the enemy will conveniently take place after Barack Obama leaves office. This will save Obama the embarrassment of seeing Bergdahl court martialed while commander-in-chief, after having traded five powerful and notorious terrorists for the soldier, while his functionaries described Bergdahl has having served “honorably.” And if you think this is just vagaries of the military legal system playing out, I’ve got a nice bridge to sell.  

When the Army announced in December last year that Bergdahl would be tried by a General Courts Martial, many observers cheered the news believing this meant the old Army was stepping up and not being politically cowed. I disagreed at the time, and still do. The decision by General Robert Abrams, the convening authority in the case, came just four days after Bergdahl went public with his story in "Serial", the popular PBS podcast series. Prior to Bergdahl’s appearance on Serial and Abrams’ action, many close observers of the case assumed that the two sides were attempting to work out a plea deal, based on the fact that two Army investigating officers had recommended some degree of leniency in the case. Most probably talks broke down over the nature of discharge Bergdahl would receive in return for some kind of guilty plea, and the soldier then went public with his story to pressure the Army and to pollute the potential jury pool. The Army reacted in kind, throwing the book at Bergdahl, though it seemed until then that this was the last thing it wanted to do.

The reason for the Army’s reluctance was obvious. From the start Obama improperly and repeatedly expressed support for Bergdahl through his feting of Bergdahl’s parents in the Rose Garden after his release, and his defense of the deal with the Taliban that freed the soldier. Omitted by Obama in all this was the fact that Bergdahl fell into the Taliban’s hands by deserting his unit from a combat outpost, putting himself and his fellow soldiers in danger, and possibly causing the death and injury of soldiers and airmen sent out to find or rescue him.  

As commander-in-chief of the military, Obama is not supposed to interpose himself into military justice considerations. But either out of ignorance or political calculation (and most likely both) he did just that. And Army commanders paid attention. They’ve slow walked what is really a pretty simple case. Only after a long delay did the Army conduct and complete a preliminary investigation, which resulted in the first recommendation of leniency. After another long delay the Army conducted a perfunctory Article 32 hearing before a different investigating officer, which resulted in second recommendation of leniency. Then came the likely breakdown in plea negotiations, Bergdahl’s podcast appearances, and Abrams referral to General Courts Martial.

That the Army still isn’t terribly interested in trying Bergdahl became apparent when following Abrams referral of charges in December 2015, it agreed to a trial date in August 2016. In February the case was put on further hold over a defense request for access to classified documents which the prosecution opposed and which was recently decided against the prosecution by the U.S. Army Court of Criminal Appeals. The latest postponement evidently is the result of this ruling so that lawyers for both sides can rummage through 1.5 million pages of documents related to Bergdahl’s desertion, capture, and release. Don’t count on the February 2017 trial date holding firm.

The real question is why the defense needs Army classified documents in the first place? Presumably it relates to Bergdahl’s capture by the Taliban and the military’s efforts to find or free him. But why would any of that be necessary to prove or disprove that Bergdahl improperly left his post and intended not to return?

The Bergdahl case is not especially complex. The military processes thousands of AWOL cases and hundreds of desertion cases every year. And Bergdahl admits to leaving his post without authorization. To additionally prove desertion and misbehavior before the enemy only requires that a jury disbelieve Bergdahl’s excuses for his action -- assuming he testifies at all which is doubtful -- or that his attorneys can present a diminished capacity defense, which they have threatened. Still, even assuming that his attorneys’ can raise this latter defense, it need not have taken nine months for either side to prepare its case (as originally scheduled.) Nor are a million plus government documents about his capture and release obviously relevant to determining his guilt or innocence.

Bergdahl’s story is that he left his post because he believed his commanders were incompetent. He intended to walk to the nearest major outpost -- about 20 miles -- to seek the help of higher ranking officers, when he was captured. So his story is that he did not intend to permanently stay away, or go over to the enemy. Fine -- that is an affirmative defense that he and his attorneys are entitled to make, though it would require Bergdahl to take the stand, a significant risk.

On the other hand, the Army makes a prima facie case (that is a case sufficient to convict the soldier) simply by introducing Bergdahl’s admissions, the testimony of Bergdahl’s fellow soldiers who found his abandoned equipment and had the last conversations with him, and evidence that patrols were sent out in search and rescue missions, thus diverted from their regular missions and placing his fellow soldiers in unnecessary danger.

When I served as an Army JAG officer many years ago, the most important consideration of the command was processing cases quickly, even more important than winning or losing. That’s because in the military, justice delayed is not only justice denied, it is bad for good order and discipline. And since many soldiers are not confined while facing charges, they like Bergdahl, continue to serve in their units. The Bergdahl case turns this principle on its head. When Bergdahl is finally tried in February -- assuming that even happens -- he will have been back in uniform and on duty as a sergeant for nearly three years, more than twice as long as his time in active service before he left his post, and nearly as long as he was in Taliban custody. Not only is that a waste of taxpayer money, and a drain and strain on the unit he’s been assigned to, but his “honorable service” shuffling papers for the nearly three years since his return, will have to be taken into account by those trying him, and thus limit any punishment even if he is convicted -- in addition to any sympathy he earns for his Taliban captivity.   

I am afraid this is not the old Army reasserting itself, but rather the new Army under Obama, protecting Obama.