Former Taliban prisoner and U.S. Army soldier Sergeant Bowe Bergdahl told military investigators that he left his base in June 2009 to report on misconduct in his unit and always intended to come right back. That will also be his defense if and when he faces a court martial for desertion, according to his lawyer.
“He had concerns about certain conditions in the unit and things that happened in the unit, and he figured that the only way to get any attention to them would be to get that information to a general officer,” Bergdahl’s lawyer, Eugene Fidell, told me Thursday. Fidell plans to argue that Bergdahl was thus technically “absent without official leave” (AWOL), rather than a deserter. The distinction could mean the difference between one month of confinement or life in prison for his client.
Bergdahl himself put forward this account of events in an interview with Gen. Kenneth Dahl, whose report formed the basis for the Army’s decision to charge Bergdahl this week with desertion, an offense that holds a maximum penalty of five years, and misbehavior before the enemy, a charge that could earn him life in prison if convicted. Bergdahl claims that he didn’t feel he could raise his concerns about his unit with his direct supervisors and needed to speak with a higher-ranking officer. Bergdahl always intended to return to his base, says Fidell.
On Wednesday, Fidell released a statement by Bergdahl about the conditions of his imprisonment, as well as a legal memo Fidell wrote this month about Dahl’s report. “While hedging its bets, the report basically concludes that SGT Bergdahl did not intend to remain away from the Army permanently, as classic ‘long' desertion requires,” the memo says. “It also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.”
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Bergdahl had left his base, called Mest-Lalak, in Paktika province when he was picked up by the Taliban and then subsequently held for more than five years. Fidell says he doesn’t consider Bergdahl a whistleblower in the classic sense, but says his client didn’t feel comfortable reporting the alleged incidents to his direct superiors because some of them were part of the conditions he intended to report.
“No, he was not planning to walk to China or India,” Fidell writes in the memo, contrary to claims by some soldiers who served with Bergdahl. “Nor is there any credible evidence that SGT Bergdahl left in order to get in touch with the Taliban.”
In a series of e-mail communications revealed by Bergdahl’s father to to Rolling Stone magazine in 2012, Fidell’s client wrote, “The future is too good to waste on lies. And life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong. I have seen their ideas and I am ashamed to even be American. The horror of the self-righteous arrogance that they thrive in. It is all revolting.”
Bergdahl told his parents they would be receiving boxes containing his possessions. He also detailed his complaints about his unit in the e-mails, including that three “good” sergeants had been forced to move to another company. He said his battalion commander was a “conceited old fool.”
He also expressed overall anger and resentment about the U.S. mission in Afghanistan and the way it was being executed. “I am sorry for everything,” he wrote. “The horror that is America is disgusting.”
Fidell doesn’t deny Bergdahl wrote those e-mails, but argues in his memo that Bergdahl was a naïve and sometimes misguided young man. Also, since Bergdahl was captured by the Taliban shortly after he left the base, he was AWOL for less than three days, Fidell wrote, meaning the maximum punishment should be one month’s imprisonment and one month of reduced pay.
Fidell declined to go into deeper detail about Bergdahl’s defense, pending the outcome of his client’s next hearing – a military version of a grand jury, which will determine whether Bergdahl will face a full court martial. His memo argues that Bergdahl is still undergoing medical treatment due to his injuries in captivity and the trial could complicate his recovery.
Fidell also questions in his memo “whether SGT Bergdahl can receive a fair trial” due to the “lynch mob atmosphere” since his May 31 release. There have been claims that U.S. soldiers died in the search for Bergdahl, although Fidell argues in the memo that no evidence exists to support such claims.
“SGT Bergdahl has been vilified as a coward in the absence of a shred of evidence to support that description,” Fidell wrote. “Whatever physical danger SGT Bergdahl may face when he reenters private life (and I fear he will), it would be very difficult to assemble an impartial court-martial panel.”
There are several other arguments in Fidell’s memo, including that the Army’s decision to return Bergdahl to regular duty after he was freed shows that the military condoned his actions, a legal term known as “constructive condonation.” According to that defense, if the Army returns a soldier to regular duty after a desertion, the Army is thereby absolving the soldier of punishment. Fidell also claims Bergdahl shouldn’t be charged with avoiding “hazardous duty” because being outside the wire without a weapon was more dangerous than being inside the base with a rifle.
These arguments may be long shots. Sympathy in the military and the public for Bergdahl is scarce. His hometown, which stood by him during his captivity, canceled his welcome home celebration. Polls of the military show that a majority of soldiers want to see him punished. Administration officials no longer repeat National Security Adviser Susan Rice’s claim that Bergdahl served with “honor and distinction,” as she did last year.
Bergdahl’s emerging defense is part factual, part emotional. It rests on his personal credibility and his intent when he left his base. His fate now depends on military officials believing that he’s being truthful. That’s going to be a tough sell, given that his judge and jury will be made up of officers from the Army he left behind that night.