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Bergdahl: messenger, deserter, or traitor?

In 2015, Sgt. Bowe Bergdahl was traded by the United States for five Taliban members who were detained in Guantanamo Bay. After Bergdahl returned to the U.S., the circumstances of his capture—the fact he walked off his post—sparked controversy. Bergdahl now pleads guilty to desertion and misbehavior before the enemy.

Photo: NPR, (Courtesy of Google Images)

Sgt. Bowe Bergdahl walked off his post in Afghanistan in 2009. For the next five years, he was tortured and used as propaganda by the Taliban. In 2014, he became part of a prisoner exchange between the U.S. and the Taliban when he was traded for five Guantanamo detainees accused of being part of the Taliban.

Normally, a prisoner of war returning home is a cause of celebration. In Bergdahl’s case, however, the circumstances of his disappearance overwhelmed the euphoria of bringing a prisoner of war home. Senator John McCain (R-AZ), a former Naval officer and prisoner of war, stated Bergdahl was “clearly a deserter.” Before becoming President, Donald Trump declared Bergdahl a “no-good traitor.” Candidate Trump even stated at some rallies, “In the old days, deserters were shot.” President Trump never served in the armed forces himself, as he received deferments during the Vietnam War to attend college, as well as for bone spurs in his feet.

“Any of us would have died for him while he was with us, and then for him to just leave us like that, it was a very big betrayal.”

For those who served with Bergdahl, his return came with mixed emotions. Former U.S. Army Specialist Gerald Sutton told PBS, “He was my friend. Ultimately, it’s not for me to judge. It’s time for him to face the consequences of his actions.” Another platoon-mate, former U.S. Army Sgt. Josh Korder, spoke to CNN saying, “Any of us would have died for him while he was with us, and then for him to just leave us like that, it was a very big betrayal.”

Sgt. Bergdahl, who has not been discharged from the Army yet, has not spoken to the media directly since his return stateside. Because of his silence, those not directly involved in his case cannot find out Bergdahl’s side of the story, including why he chose to leave his post in the middle of Afghanistan. A popular podcast called Serial released a second season dedicated to Bergdahl’s case. Sarah Koenig, a journalist and producer of This American Life, used the recorded conversations between Bergdahl and Mark Boal, producer of The Hurt Locker and Zero Dark Thirty, to tell the story of Bowe Bergdahl. It is the only glimpse, outside of his trial, into the mindset of Sgt. Bergdahl at that time.

From Bergdahl’s point of view in 2009, the U.S. Army had a major flaw that was not getting addressed or even acknowledged by those higher up in the chain of command. While on deployment in Afghanistan, he witnessed several encounters involving his superior officers that made him believe they could not be trusted to look out for him or the rest of his platoon. He decided to walk off his post, OP Mest, with the intent to walk to the region’s command center, FOB Sharana. Upon his arrival in FOB Sharana, he intended to turn himself in and talk to officers higher up in the chain of command about his superiors.

Bergdahl’s plan did not go as well as he had hoped. Only a day after he left OP Mest, he was taken by the Taliban. This began five years of torture for Bergdahl. He was used by the Taliban to create propaganda videos denouncing the U.S. and the West, as well as promoting their cause. His disappearance also started five years of trying to locate Bergdahl and negotiate for his release, which eventually occurred in 2014.

Fast-forward to October 12, 2017, when Sgt. Bergdahl pled guilty to “desertion and misbehavior before the enemy” at Fort Bragg, North Carolina. Neither he nor his attorney negotiated a plea deal with the military prosecutors. He recognized what he did was wrong, saying, “I left my platoon in a battlefield … a situation that could easily turn into a life-or-death situation.”

A member of the armed forces is guilty of desertion under 10 U.S.C. § 885 Art. 85 when he “without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently.” The statute further notes, during times of war, members of the armed forces who are found guilty of desertion may be sentenced to death. At all other times, however, death is not an available punishment.

According to a PBS report, “Only one service member, Pvt. Eddie Slovik, was executed for desertion since the Civil War. Slovik, 24, was shot by a firing squad in January 1945.” Slovik was a part of World War II, which was the last time the U.S. made a formal declaration of war against another country. Every conflict since 1945, including Vietnam, the Persian Gulf, Iraq, and Afghanistan, were all authorizations of force, but were not technically declared wars. It should be noted that the Korean War was not an authorization of force or a declared war, but a commitment of troops to the United Nations’ efforts on the Korean peninsula at that time. Thus, the last time someone could be shot for being a deserter was actually 72 years ago.

A court-martial has the discretion to choose a different punishment but is still authorized to sentence Bergdahl to death.

Notwithstanding Bergdahl’s side of the story, Bergdahl did desert his post. When applied to the statute, he left without authorization with the intent to permanently remain away from his unit. Since his desertion did not occur during a war, the maximum punishment for his desertion is five years.

“Misbehavior before the enemy” is defined in 10 U.S.C. § 899 Art. 99, and there are many possible situations that constitute a violation. Bergdahl is charged with a violation of section (3), which reads, “Any member of the armed forces who before or in the presence of the enemy … through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property… shall be punished by death or such other punishment as a court-martial may direct.” Unlike desertion, misbehavior before the enemy can carry a death sentence regardless of whether the offense occurred during a war. A court-martial has the discretion to choose a different punishment, but may still sentence a defendant to death; however, it seems unlikely that Bergdahl will receive a death sentence.

When Bergdahl went missing, other Army members surged into the area, focused on finding him. Prosecutors say that several service members were wounded during the search for Bergdahl. If true, these incidents would constitute Bergdahl endangering the safety of other Army units. Before Bergdahl plead guilty, his defense team was expected to argue that the incidents could not be specifically tied to Bergdahl and were instead incidents that occurred because of other missions that happened during the same time as Bergdahl’s disappearance.

Evidence of mitigating factors have been introduced to help Bergdahl during his sentencing, including the fact that he was previously discharged from the U.S. Coast Guard for having a severe mental breakdown during boot camp. While the Army recruiter who enlisted Bergdahl did not look into the Coast Guard discharge, investigators found that the recruiter followed protocol when checking Bergdahl’s background. Others may believe that this discharge from the Coast Guard due to a mental health issue should have prompted further investigation by the recruiter, perhaps preventing Bergdahl from ever enlisting with the Army.

Essentially, Bergdahl had delusions of grandeur that clouded his judgment.

Additionally, since returning to the U.S., Bergdahl has been diagnosed with schizotypal personality disorder by a military doctor. Essentially, Bergdahl had delusions of grandeur that clouded his judgment. During an interview with Mark Boal, Bergdahl said that he wanted to be a super-soldier or “like Jason Bourne.” He felt that what he was doing was for the greater good of his fellow soldiers—he would be a hero and an example to others. He asserts only later did he fully realize the gravity of his actions and how they truly affected his fellow soldiers.

Bergdahl’s case is not as clear-cut as some seem to think. Culpability seems to be murkier now that evidence of his diagnosis and his discharge from the Coast Guard has been presented. It is difficult to forget that the Taliban also tortured Bergdahl for five years; some wonder if that is punishment enough for his actions. His sentencing was to be held on Monday, October 23, but has since been postponed to Wednesday, October, 25. It is likely these issues will be brought up during his sentencing. For now, Bergdahl’s case is still a question of whether he is a misguided messenger or a no-good traitor.

 

UPDATE: November 3, 2017

Bergdahl received no prison time. According to NPR, “Prosecutors had been seeking 14 years in prison, while defense lawyers had asked for no prison time and a dishonorable or bad conduct discharge.” Prosecutors had several soldiers and a Navy SEAL testify regarding injuries they claimed they sustained because of Bergdahl. Bergdahl’s defense, however, countered by saying the Taliban members were the ones who actually injured the troops, not Bergdahl. Ultimately, Judge Colonel Jeffery Nance sentenced Bergdahl to a dishonorable discharge, $1,000 forfeiture of pay per month, and a reduction in rank from sergeant to private.

Claire Scott
About Claire Scott (15 Articles)
Claire Scott is a third year law student and serves as a Senior Staff Writer for the Campbell Law Observer. Originally from Chesapeake, VA, Claire is a Campbell University alumi. After her 1L summer, she worked in the Harnett County NC District Attorney's Office as well as the District 11A Veteran Treatment Court. Her legal interests include estate planning and veteran law.