In the months after Sgt. Bowe Bergdahl was freed from Taliban captivity, senior Army officials responsible for determining why he walked off his outpost and for recommending what the consequences should be struck a far milder and more sympathetic tone than Army commanders who are now pursuing charges that could send him to prison for life, new documents show.
The documents, which have not previously been disclosed, indicate that the Army’s 22-member investigative team, which spent two months interviewing scores of witnesses and compiled the report that formed the initial basis for prosecuting Bergdahl, of Hailey, never proposed that he could be tried on the most serious charge he now faces: endangering the troops sent to search for him.
Listen to more about this case: Link to “Speaking of Serial,” the podcast by the Idaho Statesman and KBSX
This dissonance has led members of the sergeant’s defense team to question whether the tougher line reflected improper influence from higher levels of the military or political considerations as top Republicans in Congress and on the presidential campaign trail declared the sergeant guilty and demanded he face stiff punishment.
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The documents include a 371-page transcript of Bergdahl’s interview in August 2014 with Maj. Gen. Kenneth Dahl, who headed the Army’s investigation. The transcript provides the most complete account yet of his disappearance from a remote base in eastern Afghanistan in June 2009, which prompted a huge manhunt.
The transcript was posted online at this link by Bergdahl’s chief defense lawyer, Eugene Fidell, who teaches military justice at Yale Law School. It is one of two documents that a number of news organizations, including The Times, had unsuccessfully sought to obtain through legal action.
Fidell said he decided to release the transcript after prosecutors attached portions to a court filing, and because of what he called the “continued campaign of vilification” of his client by Donald Trump, the front-runner for the Republican presidential nomination.
Bergdahl, 29, was tortured by his Taliban captors for nearly five years before he was swapped in May 2014 for five Taliban detainees at Guantánamo Bay in a deal approved by President Barack Obama but harshly criticized by Republicans. is now on administrative duty at an Army base in San Antonio. He has been ordered to a court-martial in August at Fort Bragg, N.C., on charges of desertion and endangering troops.
Much of Bergdahl’s story was revealed last fall when Dahl testified at a preliminary hearing that the sergeant had wanted to create a crisis by hiking to another base 18 miles away so he could get an audience with a general to describe what he felt were dangerous leadership problems in his unit. Bergdahl was quickly captured.
“Serial,” the podcast, has also broadcast recorded conversations between the sergeant and a screenwriter that are the basis for the program’s second season.
But the transcript provides additional details about the case, including circumstances of the psychological breakdown that caused Bergdahl to wash out after just a few weeks of Coast Guard basic training in 2006 for having an “adjustment disorder with depression.”
The nature of his Coast Guard discharge – and the Army’s decision to allow him to enlist two years later with a waiver, at a time it was desperate to find recruits – are issues in the case, with defense lawyers suggesting that psychological problems made obvious when he left the Coast Guard should have prevented him from joining the Army.
Bergdahl was later found to have suffered schizotypal personality disorder during the period in which he walked off his base in Afghanistan.
Bergdahl was found sitting on the floor in the Coast Guard barracks, with a bloody nose. In the interview with Dahl, he said his breakdown was spurred by a panic attack because he believed that when the time came, he would fail in his duty to rescue people who would otherwise drown in the ocean.
“I can’t save these people,” Bergdahl said he told a psychiatrist at the hospital after his panic attack, according to the transcript.
As Coast Guard training progressed, he explained, he was overcome with fears, partly spurred by his father, “that I can’t succeed in anything.”
If convicted of desertion, Bergdahl could face a sentence of up to five years in prison. But it is the second charge — misbehavior before the enemy — that is far more rare, and perilous, carrying a potential life sentence. It does not accuse the sergeant of misbehaving during battle or captivity, but of endangering troops sent to search for him.
When the charge was first announced a year ago, it left military-law experts scrambling to remember the last time it had been used, with the Army saying nothing about how it came to employ it against Bergdahl. The transcript and other documents indicate the idea did not result from Dahl’s investigation.
Before he began interviewing Bergdahl during the final days of his inquiry, Dahl presented him the standard Army document in which soldiers are informed of offenses they are suspected or accused of committing before they decide whether to talk to an investigating officer. He told Bergdahl he was suspected of three crimes: being absent without leave, desertion, and fraudulent enlistment.
The charge of fraudulent enlistment, the general told him, was being included out of an “abundance of caution.” Bergdahl was never charged with that offense.
At the end of the interview, after hearing the sergeant recount his story for more than a day, Dahl did not suggest any other charges might be merited. “I will present findings and I will address the offenses that we have talked about, you know, desertion, AWOL, fraudulent enlistment,” he said.
The interview was friendly and conversational. And the general also praised Bergdahl.
You were one of the best soldiers, arguably the best soldier in your platoon. Your service up until that point was exemplary.
Then-Maj. Gen. Kenneth Dahl to Bowe Bergdahl, on Bergdahl’s service before his disappearance
Some legal experts say the charge of misbehavior before the enemy is plainly justified because the search did put troops in danger. And the Army lawyer who presided over the hearing in September, Lt. Col. Mark Visger, endorsed both that charge and the desertion charge.
Experts also point out that ensuring good order and discipline is a major function of military justice, and commanders may be pursuing a hard line to deter similar behavior.
In December, Gen. Robert B. Abrams ordered Bergdahl to a general court-martial on both charges.
In doing so, however, he rejected Visger’s recommendation for an intermediate tribunal where the maximum incarceration would be one year and a dishonorable discharge could not be imposed.
That recommendation for a milder approach followed Dahl’s testimony that jail time would be “inappropriate.”
Abrams’ tougher tack has already prompted Fidell, the sergeant’s lawyer, to seek records of communications between lawmakers and their aides on Capitol Hill and military leaders to determine whether political influence affected the course of the prosecution.
A spokesman for Dahl, who has since been promoted to lieutenant general, said he could not discuss the investigation. And a spokesman for Army Forces Command at Fort Bragg, where commanders lodged the charges against Bergdahl, declined to comment or to identify who originated the idea to charge him with misbehavior before the enemy.
While Bergdahl was embraced after his release by the Obama administration, Republican attacks have grown.
Last year, Sen. John McCain of Arizona, the leading Republican voice on military affairs, denounced the sergeant as “clearly a deserter” and said he would convene a hearing if he were not punished.
And Trump has accused Bergdahl of being a traitor, despite testimony that he never sought to defect.
Fidell believes Trump’s comments have compromised his client’s right to a fair trial; he has sought to interview Trump and also signaled that he could be later sued for knowingly making defamatory statements.
Fidell has also denounced McCain’s statements on the case as improper political meddling, noting that Abrams, widely expected to be nominated for future commands, would have to answer questions before McCain’s Senate Armed Services Committee, which oversees military promotion.