Will Bowe Bergdahl stand trial for desertion? Answer could come soon

Sept. 16, 2015 4 AM PT

Reporting from Houston — Army Sgt. Bowe Bergdahl is scheduled to appear Thursday at a military preliminary hearing that could provide the first revealing glimpse into his capture six years ago by Afghan Taliban forces and his return to the United States in a controversial prisoner swap that linked his fate with President Obama’s legacy.

Bergdahl, 29, of Hailey, Idaho, was charged with desertion and “misbehavior before the enemy” after disappearing from his post in eastern Afghanistan. If Bergdahl’s case goes to court-martial and he is convicted of the more serious misbehavior charge, he faces a potential life sentence.

At Thursday’s Article 32 hearing at Joint Base San Antonio-Ft. Sam Houston, an Army lieutenant colonel who is also a judge advocate corps lawyer will hear from attorneys for both sides before deciding whether Bergdahl will face a court-martial.

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Bergdahl vanished June 30, 2009, allegedly walking away from his unit after expressing misgivings about the military’s role in Afghanistan. He was then captured by the Taliban and held for nearly five years by members of the militant Haqqani network based in Afghanistan and Pakistan. Last year, he was freed after Obama agreed to release five Taliban prisoners held at Guantanamo Bay.

This week’s hearing could take days, possibly continuing this weekend, as both sides have the opportunity to present evidence and call witnesses.

Both the defense and prosecution are expected to reveal as little as possible to make their case, shielding their strategy ahead of a potential court-martial.

On the unusual “misbehavior before the enemy” charge, the burden will be on the military to show that Bergdahl not only deserted but put fellow soldiers at risk. It’s a rare charge that’s more far reaching but also more difficult to prove, and will probably force prosecutors to present at least some interesting evidence at the hearing, military legal experts said.

“The desertion charge requires no impact on fellow soldiers or military operations -- you can desert from a peaceful place in a time of peace, though there is the aggravator, as charged, that he intended to shirk hazardous duty,” said Lawrence Morris, a retired Army colonel who served both as the branch’s top prosecutor and public defender.

The additional charge, misbehavior before the enemy “enables -- and because the government bears the burden of proof, requires -- the government to show that his conduct endangered others,” Morris said. Prosecutors will probably “front-load some of the aggravating aspects of the case,” introducing evidence that otherwise wouldn’t be admissible in a simple desertion case until sentencing, he said.

“There’s no requirement to show that somebody got hurt,” said Morris, who wrote a book about military justice, noting that past cases hinged on combat circumstances, including the degree of danger fellow soldiers faced as a result.

“What he did here was more than deserting his unit,” said Walter Huffman, a Texas Tech law professor and retired major general who served as the Army’s top lawyer, adding that the misbehavior charge “looks outward: That is, what you did really had a detrimental, harmful impact on your unit.”

“You leave them short-handed in a combat zone,” Huffman said. “When you send out a patrol into a hostile territory, those troops are being sent into harm’s way; it doesn’t matter if the enemy did attack.”

The misbehavior charge has been brought against service members who refused to stage ambushes or were caught drunk on duty during wartime in Korea and Vietnam, but has been used “very rarely” during the “modern era of warfare” in Iraq and Afghanistan.

Prosecutors include Maj. Margaret Kurz and Lt. Col. Christian Beese, a criminal law instructor at the Army’s legal academy, who is expected to argue that Bergdahl abandoned his base, endangering himself and fellow soldiers.

Beese and Kurz declined comment ahead of the hearing.

Bergdahl’s legal team -- led by Eugene R. Fidell, who teaches military justice at Yale Law School -- has argued Bergdahl did not intend to leave his post permanently and that after his capture, he attempted to escape, according to memos released this spring.

The defense also has argued that Bergdahl is so tied to Obama, it will be difficult to pick an impartial jury if the case proceeds to court-martial.

The Obama administration has been criticized for agreeing to swap Bergdahl and for greeting his return with an announcement in the White House Rose Garden, a move the administration defended even after military officials announced they were pursuing charges.

Bergdahl has been widely condemned by the public and politicians, including Donald Trump, who called him a “dirty, rotten traitor.”

“The depth and breadth of the current hostility to Sgt. Bergdahl are extraordinary and have enveloped the case with a lynch-mob atmosphere,” Fidell wrote to Gen. Mark A. Milley, Army chief of staff, this spring, insisting his client has been “vilified.”

Fidell also argued that the military overcharged Bergdahl and is essentially prosecuting him twice for the same alleged crime. The defense attorney said prosecutors assured him that they will not offer evidence that soldiers died searching for the sergeant, and noted that an investigation by Maj. Gen. Kenneth R. Dahl found no evidence of that, despite some soldiers’ claims.

Retired Navy SEAL Jimmy Hatch has said he was hit in the leg by an insurgent’s bullet during a rescue raid days after Bergdahl disappeared. He told CNN that Bergdahl should be held accountable for “how much was risked.”

Fidell said Bergdahl “is grateful to the military professionals including Senior Chief Petty Officer Jimmy Hatch who worked to rescue him” and respects Hatch’s “sacrifice and his personal courage.”

For national news follow @mollyhf on Twitter.

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