Sgt. Bowe Bergdahl will Face Court Martial for Desertion Charges

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 17, 2015

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This week the United States Army announced that Sgt. Bowe Bergdahl will face a general court martial and be charged with desertion and misbehavior before the enemy despite investigators recommending otherwise.  Bergdahl became the highlight of a controversial prisoner exchange last year, and investigation into the reason for his capture by the Taliban have further inflamed the issue.  The decision to formally court martial Sgt. Bergdahl comes a week after the popular legal podcast “Serial” announced it would detail his story in its second season.

Army Announces Court Martial of Sgt. Bowe Bergdahl

Earlier this year investigators for the Army announced they were considering charges against Bergdahl for deserting his unit just prior to his capture by the Taliban in Afghanistan.  The investigation into Bergdahl’s pre-capture activities fanned the flames of opposition to President Obama’s decision last year to secure Bergdahl’s with the exchange of five Taliban officials housed in Guantanamo Bay, and critics on both sides of the aisle have been looking for answers behind the captured sergeant’s decision making and even his allegiance.  The unclear circumstances of Bergdahl’s 2009 desertion led to accusations of unjustified desertion which put the lives of his unit at risk from sources both within and outside the military culminating this week in the formal announcement of a court martial trial.

The announcement of a court martial comes as somewhat of a surprise after an initial investigation into his case recommended no further action against him.  Army officials disagreed, however, and decided to further pursue charges for the soldier’s behavior.  For his part, Bergdahl has acknowledged he left his post, but maintained he only did so with the intention of traveling to a different Army base in order to voice complaints about his unit’s campaign to a general higher in the chain of command and to find information about the Taliban which could help his unit in combat.  

Sgt. Bergdahl Admits to Desertion in Serial Podcast

According to Bergdahl’s story told during the investigation into his disappearance, the sergeant was frustrated after five weeks of combat against the Taliban because he felt like his unit was not aggressive enough against the enemy.  In order to gain attention from officers higher in the chain of command, he admits to willfully leaving his base in order to travel the nearly 20 miles to another base where he could better air his grievances.  While this explanation has not been disproven, it aroused suspicion because Bergdahl was taken near a Taliban controlled village off of the route which he should have been on had he been traveling to the larger base.

Early in the first episode of the Serial podcast telling his story, Bergdahl admits to willfully leaving his base and getting off track by explaining he immediately recognized he had made a mistake and wanted to gather intelligence on the Taliban before returning to his post in order to soften his expected punishment.  According to Bergdahl he believed he could be like Jason Bourne and single-handedly do damage to his enemy by turning his planned trip to a second base into a solo mission to infiltrate Taliban controlled villages.  During his trek through Afghanistan, Bergdahl got lost in the hills and was captured by Taliban on motorcycles.

Bergdahl claims to have spent the next five years being beaten regularly and isolated in darkness while under the control of the Haqqani network, but the court martial will focus on his actions prior to capture.  The formal charges against Bergdahl – desertion and misbehavior before the enemy – could be satisfied by his own admission that he willfully left his post without permission.  Some members of Bergdahl’s former unit, who have made unverified claims that at least six U.S. troops died looking for him, noted that his admission on Serial could be enough for the Army to find him guilty. 

The Court Martial Case against Sgt. Bergdahl

The charge for which Bergdahl faces a court martial is desertion, which could be satisfied simply by proving that which the sergeant has already admitted both during the investigation and on a nationally broadcasted podcast: Bergdahl willfully left his post.  A conviction for desertion may not require further investigation into his motives, but the mystery surrounding his departure and some inconsistencies within his story could further complicate Bergdahl’s case.

Attorneys for Bergdahl expressed regret that the soldier, who allegedly suffered regular beatings that left lasting physical and emotional defects for which he will require a lifetime of medical and psychiatric attention, is now facing such a serious charge.  Eugene Fidell, who represents Bergdahl, told the Washington Post he “hoped the case would not go in this direction,” and added that his client suffered a mental defect at the time he made the decision to leave his post.

Sgt. Bergdahl’s upcoming military court martial will continue to draw attention and interests from critics of the prisoner exchange which saw him returned home.  Bergdahl, who has been deemed fit for military duty and been stationed at a desk job in the Army, now faces a possible sentence of life in military prison if convicted of the charges against him.

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