Sgt. Bowe Bergdahl could face life in prison in desertion court-martial

Dec. 14, 2015 6:48 PM PT

Reporting from Washington — A top Army commander unexpectedly ordered Sgt. Bowe Bergdahl, who was held in harsh captivity for five years by the Taliban, to face a court-martial on charges of desertion and endangering other troops for walking away from his combat outpost in eastern Afghanistan in 2009.

The charges are severe enough that Bergdahl could face a maximum sentence of life imprisonment if he is convicted. The trial could begin by May, two years after he was handed over to U.S. forces in a controversial swap approved by the White House for five Taliban prisoners from the military prison at Guantanamo Bay, Cuba.

The decision Monday by Gen. Robert B. Abrams, commander of Army Forces Command at Ft. Bragg, N.C., was the latest twist in a high-profile case that has been divisive in the military and a partisan issue in Congress and in the 2016 presidential campaign.

Abrams’ order came as a surprise because the Army lawyer who presided over a preliminary hearing in San Antonio in September recommended that Bergdahl face a lower-level court-martial reserved for misdemeanor-level offenses in the military justice system, and that he be spared any jail time.

In a brief statement, Abrams did not explain why he was pressing far more serious charges. Under military law, he is the convening authority who decides whether evidence warrants a court-martial.

Some Pentagon and Obama administration officials argued that Bergdahl suffered enough during his Taliban captivity, while critics in Congress and the Army said an aggressive prosecution was needed to demonstrate the seriousness of desertion.

Eugene Fidell, Bergdahl’s civilian lawyer, said in a statement that Abrams “did not follow the advice of the preliminary hearing officer who heard the witnesses.”

Bergdahl, now 29, was a private when he walked off Observation Post Mest in Paktika province on June 30, 2009. Over the next few months, commanders ordered numerous search parties in rugged territory laced with Taliban fighters.

But Taliban militants quickly captured Bergdahl and transferred him to the militant Haqqani network, which moved him to strongholds in neighboring Pakistan. He was repeatedly tortured, kept in the dark and held in solitary confinement for much of the next five years, officials have said.

During the preliminary hearing, an expert who had debriefed Bergdahl described the conditions of his captivity as the worst endured by any U.S. soldier since the Vietnam War.

He was freed in May 2014 after President Obama agreed to swap him for five senior Taliban prisoners, who were moved to supervised watch in Qatar. At the time, Obama said he had acted to get the only U.S. military prisoner of war back from the enemy.

Bergdahl, who is from Hailey, Idaho, is assigned to a desk job at Joint Base San Antonio. He avoided public comment until last week, when he told the popular podcast “Serial” that he left his base to catch the attention of military commanders, and to alert them to what he said was a “leadership failure” in his unit.

“As a private first class, nobody is going to listen to me,” Bergdahl said in an episode released Thursday. “No one is going to take me serious that an investigation needs to be put underway.”

Another motivation for leaving was “to prove to myself … to prove to the world, to anybody who used to know me ... I was capable of being what I appeared to be,” he said. “Doing what I did was me saying I am like Jason Bourne. I had this fantastic idea that I was going to prove to the world I was the real thing.”

Maj. Gen. Kenneth Dahl, who was charged with investigating Bergdahl’s conduct, testified at the preliminary hearing that Bergdahl was “young, naive and inexperienced” when he walked off the base, and was “truthful” and “remorseful” about endangering U.S. soldiers who were forced to search for him.

Dahl said he did “not believe there is a jail sentence at the end of this process” for Bergdahl, calling it “inappropriate.”

The Army has said no soldiers were killed or wounded during the hunt for Bergdahl, but his commanders have said his actions put lives at risk.

That claim probably contributed to Abrams’ decision to charge Bergdahl with “misbehavior before the enemy by endangering the safety of a command, unit or place,” in addition to desertion.

Eric Montalvo, a former Marine Corps lawyer who is not involved in the case, said the misbehavior charge is rarely invoked by the military, and using it against Bergdahl amounted to “piling on” by the Army.

Obama’s decision to exchange five senior Taliban prisoners for Bergdahl was denounced by many Republicans, who said the White House violated a law that requires prior notification of Congress before prisoners are released from Guantanamo Bay.

The five remain in Qatar and are barred from leaving by a travel ban imposed by the Qatari government, U.S. officials said.

More recently, Republican presidential candidate Donald Trump has repeatedly called for Bergdahl to be executed as a traitor.

On Monday, Fidell urged Trump to “cease his prejudicial months-long campaign of defamation against our client.”

Fidell also asked the Republican-led House and Senate Armed Services committees to avoid further statements or actions “that prejudice our client’s right to a fair trial.” Republicans in the House committee issued a 98-page report last week that sharply criticized the White House decision to trade the Taliban detainees for Bergdahl.

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Twitter: @DavidCloudLAT

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