BERGDAHL DESERTION CASE POSES RARE DILEMMA FOR ARMY
May 8, 2015
In 2009, Army Sgt. Bowe Bergdahl allegedly abandoned his post in Afghanistan and was captured by the enemy. Now, five years later, he is back in Army custody and facing rarely-invoked desertion charges that could put him in prison for life.
As The LA Times reports , Bergdahl's circumstances do not constitute a usual desertion case. According to the paper's report, desertion—or leaving an assigned post for more than 30 days—is not that rare. Since America's overseas wars started in 2001, there have been 6,077 cases of desertion. The Army allows most of these charges to be plead down to AWOL.
A very small fraction of these desertion cases occur overseas. Bergdahl's case is unique because the alleged circumstances following his desertion support the government’s asserted charge of misbehavior before the enemy." Members of his former unit accuse Bergdahl of endangering them while he was in custody of the Afghan fighters. This is likely based on the theory that they believe he willfully gave himself up to the Taliban forces, that he refused any attempt to escape and that he basically just ran away. Aggravating circumstances that government will choose to admit include the dangers the unit endured attempting to find their comrade in arms. It is this charge that places Bergdahl at risk of significant prison time.
"Misbehavior before the enemy" (Article 99) can include:
- Running away
- Shamefully abandoning or surrendering
- Negligently or intentionally endangering military property or personnel
- Casting away arms or ammunition
- Quitting a place of duty to plunder or pillage
- Causing false alarms
- Willfully failing to engage, capture, or destroy enemies
- Willfully failing to assist American forces in battle
Gary Solis, a former military judge and lawyer, spoke to the LA Times and commented on the particularly aggressive charges against Bergdahl. "Desertions rarely go to trial. They usually end up with a plea," he said. "This is a case nobody wants to see go to trial... for the Army, this case is just an embarrassment."
POSSIBLE DEFENSES & DILEMMAS
Experts like Solis are already predicting what position Bergdahl's defense might take or how military authorities might view his position. From one perspective, Bergdahl's captivity could be seen as a more typical prisoner of war circumstance. "The judge might think, well, this guy did do five years with the enemy," Solis told the paper. "He did bring it on himself, but it was no cakewalk."
Attorney Greg T. Rinckey, who has defended soldiers who have left their post in the past, told The LA Times that the Army may want to be careful with how they treat Bergdahl, who claims he was beaten and tortured during his captivity in Afghanistan. "This is an individual who will probably need mental healthcare the rest of his life," Rinckey told the paper. "Does the government really want to take away mental healthcare for a soldier who has been held captive and tortured?"
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