Details on Bowe Bergdahl, Soldier Freed by Taliban, May Emerge at Hearing
In the 15 months since American commandos whisked Sgt. Bowe Bergdahl from an Afghanistan hilltop in a trade with the Taliban,
he has been portrayed as both a traitor and a hero, even as most facts
uncovered about what happened when he left his outpost six years ago
have remained officially under wraps.
Those
gaps will finally begin to be filled on Thursday, when the 29-year-old
soldier, who was captured and held by the Taliban for five years,
reports to a preliminary hearing in San Antonio on charges that he
deserted his post and endangered troops who searched for him.
The
hearing will lead to a decision whether to court-martial Sergeant
Bergdahl. Military experts expect the hearing to last a few days as
witnesses are called. Lawyers will argue over the merits of the charges
and, some experts say, may try to influence the narrative over the case,
one that has become a cause célèbre for Republican presidential
contenders and President Obama’s critics.
Geoffrey
Corn, a retired Army lawyer and now a professor at South Texas College
of Law in Houston, said he expected that prosecutors “will show their
hand pretty strongly” at the hearing — partly to try to influence the
“background environment, the media and the public perception of what the
evidence will show actually happened.”
Prosecutors
including Lt. Col. Christian Beese, a top criminal-law instructor at
the Army’s legal academy, will argue that Sergeant Bergdahl left his
base in eastern Afghanistan on June 30, 2009, to shirk and avoid
hazardous duties, leading to a manhunt that put many soldiers at risk.
Colonel Beese and the other main prosecutor, Maj. Margaret Kurz, did not respond to a request for comment.
Sergeant Bergdahl’s lawyers, led by Eugene R. Fidell, who teaches military justice at Yale Law School, also declined to comment.
But in a previously disclosed memo written before the charges were announced
in March, defense lawyers said that Sergeant Bergdahl had never
intended to leave permanently and that he had been seeking a senior
officer to report “disturbing circumstances” in his unit. After capture,
they said, he behaved as a soldier should, making escape attempts that
prompted his Taliban jailers to beat him.
They also questioned whether he should have ever been allowed to enlist, given circumstances of his washing out of Coast Guard basic training.
For
now, his lawyers may have less incentive to reveal strategy, said Gary
D. Solis, a former military judge who teaches law of war at Georgetown
University. “If I’m the prosecutor, I’m going to lay it all out there,
but if I’m the defense, I’m going to try to keep my mouth shut,” he
said. “What’s the profit in showing my hand?”
The defense team has also suggested Sergeant Bergdahl is so inexorably tied to President Obama in many minds that it could be challenging to impanel an impartial jury in the event of a court-martial.
“While
many Americans have taken a broader and more sympathetic view, the
depth and breadth of the current hostility to Sergeant Bergdahl are
extraordinary and have enveloped the case with a lynch-mob atmosphere,”
Mr. Fidell wrote in March to Gen. Mark A. Milley of the Army.
Lt.
Col. Mark Visger, an Army lawyer, will conduct the hearing and
recommend whether to convene a court-martial. The decision ultimately
falls to Gen. Robert Abrams, head of Army Forces Command at Fort Bragg,
N.C.
The
fate of Sergeant Bergdahl is not all that is at stake. The outcome and
revelations will stick to Mr. Obama, who approved the swap for five
Taliban detainees in a deal attacked by Republicans who complained
Congress was never properly notified. Critics also predicted that the
detainees could end up fighting on the battlefield and that terrorists
would be emboldened to kidnap Americans to trade for others.
Mr. Obama’s national security adviser, Susan E. Rice, also drew fury from some quarters by saying Sergeant Bergdahl served with “honor and distinction.”
Jeb
Bush, the former Florida governor and a Republican presidential
candidate, described the exchange as “heartbreaking” and cited “people
that lost their lives trying to get him back.” Donald J. Trump, who
leads the Republican presidential field in polls, called Sergeant
Bergdahl a “dirty, rotten traitor” — drawing an angry rebuke from Mr.
Fidell, who pointed out not even the military accused him of treason.
Mr.
Fidell has said prosecutors informed him that they will not offer
evidence that soldiers died searching for Sergeant Bergdahl. He has also
said an investigation by Maj. Gen. Kenneth R. Dahl found no evidence of
that, either, despite contrary assertions by some soldiers.
Troops wounded during the search are another matter.
One,
Jimmy Hatch, now a retired member of the Navy SEALs, was hit in the leg
by an insurgent’s bullet during a rescue raid days after Sergeant
Bergdahl disappeared. He has undergone more than 30 surgical procedures,
and said he had contemplated suicide during recovery. Mr. Hatch told CNN
that Sergeant Bergdahl deserved his day in court, but that he needed to
be held accountable and to understand “how much was risked.”
Mr.
Fidell said he was not privy to details of that raid, “which are
presumably still classified.” But he said Sergeant Bergdahl “is grateful
to the military professionals including Senior Chief Petty Officer
Jimmy Hatch who worked to rescue him” and has the utmost respect for his
“sacrifice and his personal courage.”
Questions
remain about how much information will emerge at the hearing. The Army
refuses to release General Dahl’s report or even say whether it is
classified. An Army spokeswoman said that even if the report became
evidence, it could be obtained only through Freedom of Information Act
requests — which have not been granted. Some news organizations have
sought to persuade officials to provide access to documents entered into
evidence at the hearing.
Officials also say prosecutors might try to remove journalists from parts of the hearing they deem classified.
The
hearing will be conducted under new rules set by Congress that might
also limit information revealed. The rules were intended to end grueling
cross-examinations of sexual-assault victims, but they apply to all
cases, requiring a closer focus on whether probable cause exists to
convene a court-martial.
Even
if that does happen, some experts believe a plea deal is still likely.
Any negotiations, they say, have probably included whether Sergeant
Bergdahl could be discharged dishonorably or allowed to keep back pay
and veterans’ benefits, with the five years he was held in captivity
possibly weighing against prison time.
“There’s
probably a lot of incentive for a plea deal on both sides,” said Frank
Spinner, a former military lawyer who has defended many high-profile
military cases as a civilian.
Few
were surprised by the count of desertion, which carries a maximum
five-year imprisonment. The other charge — “misbehavior before the
enemy” — left lawyers struggling to recall the last time it had been
used. It carries a potential life sentence, but does not accuse Sergeant
Bergdahl of wrongdoing in captivity. A military official briefed on
General Dahl’s report has said he saw nothing suggesting Sergeant
Bergdahl had aided the Taliban.
Instead,
the charge states he endangered his task force by leaving his outpost
and “wrongfully caused search and recovery operations.”
The
charge is generally harder to substantiate than desertion, experts say,
and some believe the Army faces a challenge in this case. “It’s very
cumbersome and hard to prove,” said Eric Montalvo, a former Marine
lawyer now in private practice. Mr. Fidell has called the charge in this
instance a “fancier way of charging A.W.O.L.”
Professor
Corn said he believed that the charge was sound and that its validity
may be established, among other ways, by video of Sergeant Bergdahl’s
release. In that operation, he said, Special Operations forces were
placed in jeopardy by flying into Taliban-controlled territory to
recover him from armed, hostile forces.
And while the charge may be unusual, Professor Corn said, “this is certainly an unusual set of facts.”
He continued, “It’s just not common for soldiers to do what this soldier did.”
Correction: September 13, 2015
An earlier version of a web summary of this article misstated Bowe Bergdahl’s age. He is 29, not 26.
An earlier version of a web summary of this article misstated Bowe Bergdahl’s age. He is 29, not 26.
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