Bowe Bergdahl, To Be Court Martialed?

October 11, 2015

With my understanding of the military justice system, I have said from day one that his court martial, level of trial and conviction were not a slam-dunk. NOTE: I am not saying that he will get off "scott-free." I am not saying that he cannot be convicted of anything. But, it has been clear that this is a very complex case that presents valid questions as to certain of his guilt and in addition what his punishment should be for what he may be guilty of.

http://www.columbian.com/news/2015/oct/10/jblm-was-choice-for-bergdahl-inquiry/

http://edition.cnn.com/2015/10/11/us/bowe-bergdahl-military-hearing/index.html

Edited October 11, 2015 by Gregory Matthews

December 12, 2015

I have read and/or viewed three accounts of his latest statement as to why he did what he did. As these differ I am uncertain as to their correctness. However, in my opinion, his alleged statements give support to the idea that he should be given a court martial. But, I believe they also support a defense that he did not desert and should not be convicted of such.

So, perhaps he should be tried for another crime. But, that does not mean either that he should be convicted or the nature of a sentence. It simply means that the situation is complex enough that a court martial should be held to evaluate the evidence and to determine what that evidence shows and what should be the result of that determination.

December 15, 2015

A decision, according to news reports, has been made to send Bowe Bergdahl to a trial by a General Court Martial. On the basis of my understanding I support this decision. However, I do not believe that conviction of desertion is certain. I think, however, that there is a good chance that he could be convicted of a lesser included offense, if that is a part of his court martial. To assist readers of this forum to understand the process, I will discuss various aspects of this case and the decision:

Lesser Included Offense: In civilian life this provision may apply or it may not apply. That will depend upon the local applicable law. In a military court martial it will apply only if the trial has been properly set up for it to apply. Absent this it will not apply. I am not aware as to whether or not Bergdahl's trial has been set up that way. What this means is that a person may be found not-guilty of the crime charged and guilty of a lesser charge. E.G. A person may be found not-guilty of murder and then guilty of homicide.

Article 32: This is a formal hearing some like a Grand Jury proceeding in civilian life. The Article 32 comes up with a recommendation as to whether or not the person will be tried by a Court Martial, the charges that will be preferred and the level of the court martial, plus the sentence to be given if a court martial is recommended. In this case, the Article 32 hearing recommended that he Bergdahl be tried by a Special Court Martial and that he not be sentenced to prison. An Article 32 is only a recommendation. There is another officer who decides whether or not to accept the recommendation. In Beergdahl's case this officer rejected the recommendation and ordered him to go to trial by a General Court Martial which will be under conditions that will limit the maximum sentence to life in prison, although it could be less.

Article 15: This is a very minor discipline that is not a criminal conviction. It might be compared to an officer writing you a ticket for spitting on the sidewalk. Although it can have some significant financial consequences.

Summary Court Martial: This is the lowest level of a criminal conviction in the military system. It is for minor offenses and limited consequences.

Special Court Martial: A conviction by this court involves a criminal conviction. It should not be dismissed as a minor conviction. It can be set up to give a Bad Conduct Discharge. It can involve prison time. But, it has limits on how far it can go in sentencing a person.

General Court Martial: This court has no limit as to its sentence. It can sentence to death, but not in Bergdahl's case. It can sentence to a Dishonorable Discharge. It can sentence to life in prison, as in Bergdahl's case. It has a conviction rate of 98% or higher. I do not remember the exact figure. If it has been set up, in this case, to allow lesser included offences, I expect that Bergdahl will be convicted of something. I do not have an opinion as to what the sentence will be. If it has not been so set up and the only charge is desertion, I do not think that a conviction is a slam-dunk. He, in my thinking, could be found not-guilty.

Well, I hope this is helpful in understanding the process.

December 16, 2015

Here's an interesting article about this in the Orlando Sentinel today:

Bergdahl to face charge of desertion

Associated Press

WASHINGTON — Army Sgt. Bowe Bergdahl, held captive by the Taliban for five years and freed in exchange for five detainees in Guantánamo Bay, will face charges of desertion and misbehavior before the enemy in a general court-martial, the Army announced Monday.

If convicted, Bergdahl could get life in prison on the misbehavior charge and up to five years for desertion. He also could be dishonorably discharged, reduced in rank and made to forfeit all pay.

Bergdahl, 29, of Hailey, Idaho, walked off his post in eastern Afghanistan's Paktika province June 30, 2009. He was released in the prisoner swap in late May 2014 that touched off a firestorm of criticism, with some in Congress accusing President Barack Obama of jeopardizing the safety of a nation for a deserter.

A date for an arraignment hearing at Fort Bragg, N.C., will be announced later.

Bergdahl's attorney, Eugene Fidell, said the convening authority — a high-ranking officer charged with deciding whether evidence warrants a court-martial — did not follow the advice of a preliminary hearing officer.

Lt. Col. Mark Visger had recommended that Bergdahl's case be referred to a special court-martial, a misdemeanor-level forum. That limits the maximum punishment to reduction in rank, a bad-conduct discharge and a term of up to a year in prison.

The U.S. Army Forces Command charged Bergdahl on March 25 with “desertion with intent to shirk important or hazardous duty” and “misbehavior before the enemy by endangering the safety of a command, unit or place.”

Misbehavior before the enemy was used hundreds of times during World War II, but scholars say its use appears to have dwindled in conflicts since then. Legal databases and media accounts turn up only a few misbehavior cases since 2001 when fighting began in Afghanistan, followed by Iraq less than two years later. By contrast, statistics show the U.S. Army prosecuted about 1,900 desertion cases from 2001 to the end of 2014.

Fidell has argued his client is being charged twice for the same action, saying in a previous television interview that “it's unfortunate that someone got creative in drafting the charge sheet and figured out two ways to charge the same thing.”

Separately, Fidell, a military-justice expert who is also a visiting lecturer at Yale Law School, complained about political figures who have made derogatory statements about Bergdahl.

Fidell asked that Republican presidential candidate Donald Trump “cease his prejudicial months-long campaign of defamation against our client. In October, Trump called Bergdahl a “traitor, a no-good traitor, who should have been executed.”

Fidell also asked the House and Senate Armed Services committees to avoid further statements “that prejudice our client's right to a fair trial.” The House committee last week issued a 98-page report criticizing the Obama administration's decision to swap the five former Taliban leaders for Bergdahl.

Fidell pointed to the fifth page of the report that said the committee would remain abreast of the disciplinary process and ensure that “Sgt. Bergdahl's behavior is adjudicated as required.” Fidell said he read that as a call to “hammer” Bergdahl for his actions.

Bergdahl hasn't spoken publicly about his decision to walk away from his post or his subsequent five-year imprisonment by the Taliban and the prisoner swap in May 2014 that secured his return to the United States. But during the past several months, he spoke extensively with screenwriter Mark Boal, who shared about 25 hours of the recorded interviews with Sarah Koenig for her popular podcast, “Serial.”

Bergdahl says in the interviews that he walked off his base to cause a crisis that would catch the attention of military brass. He wanted to warn them about what he believed were serious problems with leadership in his unit. And he wanted to prove himself as a real-life action hero, like someone out of a movie.

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

Bergdahl to face charge of desertion