For some reason I’ve had several experiences in my life with deserters, one intimately, so I know something of the law on this subject. Or thought I did.

My first encounter was when I was 9, and we were told to report to the town square in our Little League uniforms for a parade. 1954 I think. The parade was for a returning POW from Korea, and the whole town showed up; the high school marching band, the local miner’s union with their banners, Lions Club and even one of the church (we only had one) ladies’ groups. The town was about a mile long, and we marched the length of it, the returning hero in the back seat of a nice open convertible. At the end of town the parade just broke up and we all walked home, except for the guest of honor, who was taken about another mile to a secluded country club…where I think, most of the town believed he was to be feasted. Only, my dad told me, there was a troop of MP’s waiting here, where they took this soldier away. Dad said he’d been a deserter and collaborator with the commies in the camps. A snitch. Even 9 year olds understood that.

My second encounter was more intimate, in 1974, when Pres Ford announced his amnesty program for all the draft dodgers, which to the military meant a more lenient attitude toward deserters who would come in on their own. One kid from Florida had turned himself in Australia, where he had spent two years. He was moved to an administrative holding company in Hawaii, and charged with desertion, at that time facing 20 years in Leavenworth and a Dishonorable Discharge (DD). He requested me as his defense counsel, and I flew out to Ft Shafter from Tokyo to meet him. Seems he’d been on R&R from a rifle company in RVN and decided he just couldn’t face 4 more months so decided to stay around. The chief prosecutor and the Judge were both in favor of me asking for a change of venue and having the case tried in Australia, where all the Aussies who knew him could vouch for his good character. (He had been a model citizen, had a job, with plenty of friends.) I think they also looked forward to five days of having fun Australian-style, which I’m told can be very spirited..

There was only one catch. My client had lived in Australia under an assumed name, which is what is called primae facie evidence of the intent to desert. And desertion is an “intent” crime. The soldier or sailor must have formed in his mind the intent to stay away, and  a name change is solid proof. Also, any absence over 30 days is also considered evidence of intent. With two provable elements my client was cooked so I disappointed everyone by saying no to the change of venue..

Instead I decided to suffer through the miserable tropical balm of Oahu, and returned to Hawaii a month later for a one-day trial, where I was able to finagle a reduced charge of “AWOL over 30-days”, with only one year in jail and a Bad Conduct Discharge (BCD). I’ve still never been to Australia. That trip to Australia would have cost the kid another 5 years at least.

The point is, the military took its extended AWOL’s/desertions seriously. Or so I thought, until 2003-2004, when a family I know had a son who’d been in the Navy for almost three years, with a Med Cruise and Black Sea Cruise under his belt. Suddenly he jumped ship as his ship was being outfitted for the invasion of Iraq. His mother called me and asked my advice when she thought her son had been at the beach on leave overlong, when she noticed on the internet that his ship had sailed for the Gulf. He’d been lying to his family for over two months. I told the family what I thought was still the law, and that “Missing Movement” and “Failure to Report”, a verison of AWOL, was considered a serious offence. Still, the family was so angry, (the patriarch was a Navy vet from the WWII), that they notified the Navy as to his whereabouts, then were stunned when the Navy did nothing about it.

Several months later the boy was finally rounded up with a bunch of other deserters by NCIS, gathered in a holding facility and given documents to sign that they waived their right to a trial or hearing, and would be administratively released from the Navy, with no worse than a General Discharge. They didn’t even issue Undesirable Discharges (UD) anymore. Next day, they went home, all cleared.

My, how things have changed, so I admit, I haven’t a clue what articles of the Uniform Code of Military Justice (UCMJ) Sgt Bergdahl has broken here. But I’m sure AWOL is one of them, and intent has nothing to do with it. Just by not showing up, he’s guilty.

I assume every military unit has the Morning Report or it’s equivalent, which accounts for every active duty soldier and sailor on a daily basis. And the day after his disappearance in Paktika Province, in 2009, Berqdahl would have been noted as not appearing for duty within only a few hours. That part of the crime was proven within 24 hours. And very shortly, within a few days of continued absence, evidence would already have begun being gathered by CID.  It seems there’s a large volume of information, evidence for trial, of a lot of soldiers that indicate Berqdahl’s state of mind in the days leading up to his departure from his post. And I am sure shrinks are now talking with him (depending on who’s ordering the psych-eval, the theater commander or the White House) to determine his state of mind. I’ve already heard some one call this “pre-Stockholm Syndrome syndrome”.

I won’t get into this aspect in part because I’m well versed in this subject of soldiers in the field questioning the judgment of their national leaders for sending them there in the first place, or the judgment of their officers (many of whom were really horrible in the Vietnam era, so judged on a case by case method). Most were draftees in those days. There were even a few like Berqdahl who just loved the ethnicity of the region (as I do, by the way, only a little more pragmatically) and couldn’t stand hearing other soldiers talking about the people we were supposed helping, calling them “gooks’ or “slopes” or, in Iraq, “ragheads and sand-n***ers”. In fact, some of these extra-sensitive individuals join the military just to get in touch with their inner Moonbeams, but they fail not because of what they think about the Pathans or Vietnamese, but in the end what they think about their own military. Bergdahl’s type, to be so wise, as his father is so wise, and very clearly a Taliban-symp, always fail to see the thousands upon thousands of wonderful things our troops have being doing in Afghanistan since 2002, from digging wells, building schools, freeing and empowering women…not to run companies or to learn the intricacies of power-lesbianism, mind you, but just to be able to go to school and read and write. So they always fail in their arguments, especially on cross examination. On the stand, when called upon to explain what they know, they end of explaining what they don’t know… and why.

So, Berqdahl should be charged and tried, only the desertion charge may not stick. But since several families lost sons and brothers and husbands (6), he should not get the cheap pass out via an administrative discharge. At least “AWOL over 30 days” “with aggravating circumstances” (6 dead), i.e., at least what my client got in 1974. Eddie Slovak was shot in 1945 for far less.  And he shouldn’t be allowed to profit from the book deal that now awaits him from several publishers. Like my client from Hawaii, who had to wait a year to see ma and pa back at the sand castle in Ft Myers, jail should be Berqdahl’s home at least until everyone has forgotten who he is. That big parade down Main Street in Idaho should have to wait.

But as I tweeted a day ago, “Was Obama sucker-punched here (again) or has he sucker-punched America (again)? It’s still impossible to know for sure whether Obama’s missteps are sheer incompetence or hubris, an intentional thumb in the eye to the military, the American people, and even to the men and women who have given up their lives, most on Obama’s watch, for a mission he never believed in. (Murder by indifference is a pretty serious charge, too.) Or, by setting loose five incorrigible killers on the people of Afghanistan is Obama getting  even with Karzai (an SOB in every Middle Eastern dialect) or is he simply signaling that he hates any symbol of democracy in the Middle East, especially if it was incubated under a Republican president.  Obama’s record for helping to reverse even the remotest hope for free elections in several countries now is so breathtaking I have to think it is hubris.

But the American media only seems to want to inquire into the sagacity of the Berqdahl-for-5 Ruthless Killers swap, while it’s clear Bergdahl could more fairly have been swapped for an Afghan swineherd in a Kabul jail. This story has largely been a product of the British press, although well-known for years. Since Susan Rice has already been trotted out to describe Berqdahl as an exemplary soldier, we should be looking for extreme “command influence” from Hegel and the White House to cover up his misdeeds, and simply send him home to Idaho with an administrative discharge.

look for it, for if that occurs, that will be the real impeachable offense, just one in a number of impeachable offenses over the past several months, but not this silly “notification” offense, that Obama failed to notify Congress of the swap.