Are we nearing the end of the Bowe saga?
RALEIGH, North Carolina (AP) — Military prosecutors have reached into
a section of military law seldom used since World War II in the
politically fraught case against U.S. Army Sgt. Bowe Bergdahl, the
soldier held prisoner for years by the Taliban after leaving his post in
Observers wondered for months if Bergdahl would be charged with
desertion after the deal brokered by the U.S. to bring him home. He was —
as well as misbehavior before the enemy, a much rarer offense that
carries a stiffer potential penalty in this case.
Bergdahl could face a life sentence if convicted of the charge, which
accuses him of endangering fellow soldiers when he “left without
authority; and wrongfully caused search and recovery operations.”
Observers say the misbehavior charge allows authorities to allege
that Bergdahl not only left his unit with one less soldier, but that his
deliberate action put soldiers who searched for him in harm’s way. The
Pentagon has said there is no evidence anyone died searching for
“You’re able to say that what he did had a particular impact or put
particular people at risk. It is less generic than just quitting,” said
Lawrence Morris, a retired Army colonel who served as the branch’s top
prosecutor and top public defender.
The Obama administration has been criticized both for agreeing to
release five Taliban operatives from the Guantanamo Bay prison and for
heralding Bergdahl’s return to the U.S. with an announcement in the
White House Rose Garden. The administration stood by the way it secured
his release even after the charges were announced.
The military has scheduled an initial court appearance hearing for
Bergdahl on Sept. 17 at Fort Sam Houston, Texas. Afterward the case
could be referred to a court-martial and go to trial.
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. Misbehavior before the enemy cases were tried at least 494
times for soldiers in Europe between 1942 and 1945, according to a
Military Law Review article.
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 between 2001 and the end of 2014.
The misbehavior charge is included in Article 99 of the military
justice code, which is best known for its use to prosecute cases of
cowardice. However, Article 99 encompasses nine different offenses
including several not necessarily motivated by cowardice, such as
causing a false alarm or endangering one’s unit — the charge Bergdahl
Recent prosecutions under the misbehavior charge include a Marine
lance corporal who pleaded guilty after refusing to provide security for
a convoy leaving base in Iraq in 2004. A soldier in Iraq was charged
with cowardice in 2003 under Article 99 after he saw a mangled body and
sought counseling, but the charges were later dropped.
The specification that Bergdahl faces appears in the 1971 case of an
Army captain accused of endangering a base in Vietnam by disobeying an
order to establish an ambush position. The captain was found guilty of
other charges including dereliction of duty.
Another case cited in a 1955 military law journal says an Army
corporal was convicted under Article 99 of endangering his unit in Korea
by getting drunk on duty. The article says he “became so drunk that it
took the tank company commander thirty minutes to arouse him.”
Bergdahl’s attorney, Eugene 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.”
The scholars say that’s a valid issue for Fidell to bring up in court, but it might not sway military authorities.
“The question is: Is it a piling on?” said Jeffrey K. Walker, a St.
John’s University law professor, retired Air Force officer and former
military lawyer. “It does almost look like you’re trying to get two
bites at the same apple.”