This will contain a little primer in military law, and my bona fides in this Bergdahl case.
In 1975, one of my last official acts in my Army tour in the Far East was to defend an Army deserter being court-martialed in Honolulu. This soldier’s case was not unlike that of (Sgt) Bowe Bergdahl’s and I think the outcome will end up about the same.
How I came to this case was that a kid I had represented was waiting to out-process in Hawaii, and met this young man who had turned himself in after five years on the lam in Australia. When soldiers are charged with a crime they can accept assigned counsel, hire civilian counsel, or ask for another military lawyer by name. Based on a glowing report from the kid out-processing, the deserter asked for me. And because it was a desertion case, and in theory the death penalty is in play, I was allowed to travel to Honolulu to defend him. Great duty, huh?
My first trip took three days, where I met with my client, reviewed his personnel record, and met the chief prosecutor. Routine stuff. Somewhat like Bergdahl, this kid, after 6 months up-country, near Pleiku, took R&R to Australia, looking at another 6 months after returning. He had been a member of a rifle platoon, had been in a few firefights, nothing especially hair-raising he said, was a good soldier, and had no problems with his mates or his commanders. When he got to Australia he made the acquaintance of some nice Aussies his age, hung out with them, fell for a pretty girl, and just decided to stay.
Five years later, in 1974, President Ford offered an amnesty to all the draft dodgers, offering a 2-year work program.. Suddenly a few military deserters started turning themselves in, as well, hoping the military would extend the hand of forgiveness that Ford had the civilians. We set our trial date, I returned to Japan, preparing myself for a 3-day trial a month later. I went back into court on the scheduled day of trial and watched a special court martial (for lesser crimes) using the same senior officer as president of the court that would be sitting on mine. They were hearing a case in which a young soldier had gotten into a fight with another one, and just as the MP walked up to separate them, he picked up a stick…a wooden stick…and hit the other soldier. The charge was aggravated assault even though the soldier was unhurt; no blood, no breaks. This senior colonel sitting on the court had a “mean look in his eye” and the jury (3 officers, 2 enlisted) threw the book at him, 2 years plus a BCD (Bad Conduct Discharge). That was what I was shooting for with my deserter, only no way that colonel would allow that. So I went to the prosecutor and his boss, the SJA, and offered a plea deal: my guy would plead guilty to AWOL-over-30-days, and receive no more 18 months, and a BCD. Know what? They accepted it.. It was then I found out the Army’s dirty little secret, that they had no real desire to hang these deserters either. They never advertised it, but the Army was more interested in closing the book than in hanging them.
Which brings me to Bowe Bergdahl.
I think the Army, the Defense Department, and the White House, all want to close the book on Bowe Bergdahl.
Only, if you’ll notice, there are three moving parties here, not the two I had to contend with in 1975…a team of prosecutors and a hanging colonel. Of course, my purpose has changed today, too. I am no longer a defense counsel, and I think Bowe Bergdahl has done some obscene things, and would like to see some justice come of it for the real harm he’s caused.. That the Left embraces him because of all the things he said about smug, holier than-thou-America doesn’t impress me. He’s not smart enough to make that observation. He simply was not a good person, and he got other men killed for no greater reason than a selfish teat fit. I’d like to see him have to stand up and take responsibility for that.
Only he won’t.
But since I understand the subtexts, I think I can tell this story better than most, and in a way that will at least tell you what you can reasonably expect from this case. The first step in this process is that Bergdahl must be officially charged, which at this writing, the DoD says he has not. Only one person can charge Bergdahl, his commanding general, General (4 stars) Mark Milley. He has the absolute authority to declare Bergdahl innocent, or to have suffered enough and scrub any further investigation. I am sure he has been encouraged to do just this from some quarter of his professional world. But in all likelihood Gen Milley will bring charges, only how those orders will go forward will depend on how vigorously the Army will want to convict Bergdahl versus him just going away, and General Milley is not entirely in charge of that, since the The Judge Advocate General’s office is closer to DoD and the White House than Milley. So Bergdahl faces a range of charges that could send him to prison for 10-20 years, all the way down to 18 months, or even to “time served” concerning his unfortunate incarceration at the hands of his friends-the-enemy.
But much of this depends on which side of the careerist table Milley sits on. About that I can’t say. Milley already knows his field commanders, and their troops, largely want Bergdahl hung. Six good men are dead trying to find and/or rescue him, and there is no real question that Bergdahl voluntarily placed himself in the hands of the Taliban. It wasn’t a mistake, a walk in the wrong neighborhood at the wrong time of night. I think there’s evidence aplenty to prove this. But this theory going forward depends on two things: 1) whether Gen Milley gives a flip what his field commanders or colleagues think about his decision, or him, i.e, if he has his eye on even bigger careerist pies which he can only grab if he pleases bosses in the SecDef’s office or the White House, or 2) whether careerists JAG’s have their own agenda to direct this case in order to provide higher-ups from still other quarters a different result. (Sorry, but this is how peacetime military have always behaved since Grant was president, and America has had a peace-time military mentality in its front office ever since Obama came to power, even as tens of thousands of soldiers have fought and bled and died as if there were a real war going on out there.),
I actually worry more about the second option is the case. In my day (Vietnam War) all the defense lawyers in the Army were volunteers, doing 4-5 years, then getting out. They simply couldn’t be bullied by pushy commanding generals or bossy Staff JA’s. I tried cases all over the Pacific because Navy and Air Force lawyers were all careerists, and troops would ask me to defend them just to insure they were getting a square shake. (Yes, LadyPenguin, I even defended sailors and Marines on Navy bases.)
Regardless of who is pulling the strings, or if there is a 3-way tug of war, there is every reason to believe that SecDef and possibly the White House want Bergdahl to be disposed of without a lot of facts being released to the public; i.e, documents in he open trial process, for clearly, someone(s) dropped the ball inside the system about Bergdahl, and finding that out means a trail to others who should have known or were complicit.
When Bergdahl went AWOL, he was supposed to have been flagged immediately. In the field that could take a few days. Being flagged means you cannot receive promotions or any other favorable personnel actions. But a soldier is not dropped from the rolls until after 3o days, and by that time the Army knew Bergdahl was in the possession of the Taliban. Proof that he intended to leave his post was easily proved, although the public did not know it at the time. But CID probably did. and had the power to decide that his status should not be changed administratively. Any irregularity in his status should have posed a problem, but somehow…and this is critical…his status was changed from AWOL to POW, and possibly by a successor command when his files were moved forward. Who gave that change-order…could be a general, a colonel, a lieutenant, or even an personnel office staff sergeant…and whether on their own volition or under orders from a higher up…is a big question. And finding the answer depends on whether the decision was made in that part of the Army on a war-footing in-theater, or, as previously mentioned, the one on a peace-time footing out-of-theater.
Of course we will never know, for there are many butts to be covered in this process, in which Bowe Bergdahl, the Mick-Dundee-on-walkabout-cum-deserter-cum-prisoner of war, becomes just a board piece. I suspect this is the case, not to appear cynical, but it seems that the only people who see Bergdahl as a man who childishly walked off the job, causing six comrades to die trying to “rescue” his worthless ass, committing a grievous sin in the process, has nothing to do with the political case of Specialist Bergdahl going forward.
Somehow Bergdahl was able to get promoted, from specialist to sergeant, which requires (look it up) 1) there to be a vacancy in the MOS the Spec4 possessed, which means some deserving E4 didn’t get that slot, and 2) a high rating among unit NCO’s and officers who graded him meritorious and worthy of the distinction. In Bergdahl’s case, for what? Sharing Taliban swill with some cutthroats for five years? Taking Q’uran lessons? Then there is the issue of back pay…and at what rate? I’m told Bergdahl received back pay, and depending on his date-of-rank, which every sergeant knows by heart, it could amount to close to $200,000.
If Bergdahl got back pay there is a cover-up in here somewhere, although don’t look for it for all the high drama, political reasons. Some officer (most likely) just screwed up, and is trying to keep the cat inside the bag. Once again, if that occurred in the peace-time part of the Army, Tampa or DC, this embarrassment could run as all the way to Hagel’s desk, or the White House, once Bergdahl came to their attention and posed a potential, then real, liability. In the real Army they would already have gotten to the bottom of it quickly.
So you can see why everyone involved has an interest in seeing “justice being served” with Bowe Bergdahl just a notch below how his platoon mates understand justice, or the families who lost six apparently irrelevant sons and husbands.
Even a young whippersnapper, as an appointed defense lawyer, fresh out of Charlottesville, once the Article 32 proceedings have been completed, can march right in and offer a plea deal of a BCD, and two years, with time served (and Bergdahl gets to keep his $200K) and likely get it.
Just as I did in 1975, and for almost the same reasons.
