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What to Do About Bowe Bergdahl?

Whether Bowe Bergdahl is a good guy or a bad one, or both, the Pentagon is going to have a hard time figuring out if he should be sentenced to prison as a deserter.

by James Weirick
Dec 17 2015, 3:40pm

Photo via Wikimedia Commons

After five years of bloody fighting in Iraq, US ground forces — the Army and Marine Corps — were having difficulty recruiting. The Army took a chance on a young home-schooled man from Hailey, Idaho, who two years earlier had been rejected by the Coast Guard for psychological issues. Thus began the Army career of Sergeant Bowe Bergdahl.

On Monday, that career all but ended, when General Robert B. Abrams, Commanding General, US Army Forces Command, decided that Bergdahl will face a court-martial on charges of desertion and misbehavior before the enemy. He is accused of fleeing his post, before being captured by the Taliban and spending five years in captivity before being freed in a prisoner swap last. 

The charge of desertion requires that a soldier have left his place of duty without permission to avoid hazardous duty. Though this charge can be worded in other ways, the government's theory is that Bergdahl left his post to avoid his duty. There is almost no evidence, however, that he did so to avoid combat. If anything, those who testified during his Article 32 hearing (similar to a civilian grand jury, although not binding) suggested that he was upset that he wasn't able to take the fight to the Taliban.

But included in the desertion charge is the lesser charge of absence without leave, or AWOL, which only requires that the soldier leave his place of duty without permission. From testimony at the Article 32 hearing, it seems pretty clear that Bergdahl failed to get permission to leave his post.

The second charge, misbehavior before the enemy, is more complicated and covers things ranging from running away to cowardly conduct. But the government has indicated that it will proceed under the theory that Bergdahl misbehaved before the enemy by endangering the safety of his unit.

Bergdahl's disappearance did, however, cause his unit to send multiple patrols out to look for him. Not only were these patrols in danger of being attacked by the Taliban, or hitting an improvised explosive device (IED), but sending out all of these additional patrols left the unit with fewer soldiers back at base to protect it if it came under attack.

Though this is the end of Bergdahl's military career — health issues will likely result in him being medically retired from the Army anyway — it is not the end of his story. His case escapes our natural desire for a simple explanation. He's not good or bad, perfect or evil, hero or villain. His motivations and actions are foolhardy and admirable at the same time. Bergdahl's story is nothing but gray.

Related: Bowe Bergdahl Files Appeal to Dismiss General Presiding Over His Pre-Trial Hearing

He leaves his base in Afghanistan with no weapon. What an idiot! He endures years of torture and still has the strength to fight back. What a badass!

While it may not be possible to fully plumb the depths of this case for years, there are some issues that can be explained more fully now. Much of what we know about Bergdahl comes from the investigation conducted by Army Major General Kenneth R. Dahl and his team of 22 investigators. Dahl, then the Deputy Commanding General of I Corps at Joint Base Lewis-McCord, in Washington State, was assigned to investigate the case by Army headquarters. In an unusual move, Bergdahl's lawyers released a 393-page transcript of the Article 32 investigation, which does give us some insights into how he got himself into such a wretched mess.

In 2009, Bergdahl was deployed with his unit to Afghanistan. He was upset with what he believed was problematic leadership in his unit and decided he needed to address those issues with his superior commander, who was stationed at a larger base 14 miles away from the small observation post where Bergdahl and his unit were. He left his post, unarmed, intending to hoof it to the larger base. 

At the time Bergdahl left his observation post, he was a private first class or PFC, which is near the absolute bottom of the military. It almost goes without saying, but average PFCs don't give their opinions to a general — ever. (He was promoted to sergeant while in captivity.)

Bergdahl believed that running away from his unit — and the resulting havoc it would cause — would allow him to show up at headquarters and say, "I am the guy you are looking for, and I am not saying anything until I can talk to a general and tell him about this platoon." 

Almost anyone who has ever served in the military knows that this is an outlandish plan. But Bergdahl is not like most people, either in or out of the military, according to Dahl. During the investigation, Dahl found that Bergdahl had been raised on the edge of the grid (with a "fairly unusual amount of separation let's say — not isolation but separation") and was essentially denied "normal social development opportunities that would have made social interactions and making friends... a little bit easier for him."  This resulted in him having "unrealistically idealistic… standards and expectations of other people." 

Bergdahl's superiors describe him as a motivated soldier who took pride in his job and was passionate about taking the fight to the Taliban. His platoon commander explained that Bergdahl "always did everything he was asked to do, never complained" and "took honor in doing that task and accomplishing it to the best of his ability." His squad leader said about Bergdahl, "Everybody wanted him in his fire team. Not a lot of complaining, kept his head down, did his job; and you know, that is what we are always looking for." The same squad leader explained Bergdahl's view of the enemy: "He wanted to take the fight to the enemy... He was passionate about it."

But he was also an odd duck who didn't adjust well during his deployment. Bergdahl has been described as "very idealistic" -- he was for example enamored of the character John Galt from the novel Atlas Shrugged for his willingness to "put himself out front and sacrifice himself, you know, for the cause to stop the machine, stop the system, you know, whatever it might be."

Bergdahl was also obsessed with the Bushido samurai warrior code. According to investigators, Bergdahl believed that if one sees a "moral wrong, that you are motivated to act immediately, you know, to do something about that and that you do so without regard to your personal consequences to you or even without any regard to whether or not you are going to succeed or fail," Dahl explained. He had "outsized impressions of his own capabilities."

Reality hit Bergdahl quickly. He left his unit sometime during the night on June 30, 2009. By 10 o'clock the following morning, he was in the hands of the Haqqani network, a local group affiliated with the Taliban. 

Bergdahl spent almost five years in captivity before he was released on May 31, 2014.

After his release, Bergdahl underwent months of medical treatment, debriefing sessions, and a reintegration process, conducted by a team of experts skilled in assisting returning prisoners of war, at an Army hospital in San Antonio, Texas.

But this still left the Army with the question of what to do with him.

Bergdahl's commanding general decided that an investigation was necessary, and assigned Dahl, a two-star general, to look into the matter. Dahl led a team of 22 investigators and spent a number of months examining the details of Bergdahl's disappearance, including an extensive interview with Bergdahl himself.

Dahl found no evidence that Bergdahl had any intention of joining or helping the enemy. He went into great detail about the problems Bergdahl had with adjusting, specifically how Bergdahl couldn't separate the idealistic expectations he had formed through his years of reading from the reality of life. For example, Bergdahl believed there were problems with his unit, but Dahl found none.

As Dahl explained it, "I think he absolutely believed that the things that he was perceiving were true. And I equally believe that he was completely wrong in that, which is just, you know, the sad irony of it."

Dahl found Bergdahl to be truthful, as did the other investigators. He also found that Bergdahl quite honestly believed his own "delusional" views.

"I think he actually believed that, if he had had the weapon and five Taliban rolled up on him, that he probably could have taken care of all of them with his pistol if he had had it with him," Dahl said.

This leaves us with a puzzling view of Bergdahl. He didn't run away to avoid fighting; he was not motivated to help the enemy. He appears to be merely a young man, unable to distinguish between idealistic stories and the reality of life, who made some bad decisions.

One of the members of Dahl's team, who testified at the hearing, provided what is arguably the most important testimony: the conditions of Bergdahl's captivity.

Related: Bowe Bergdahl: I Was Tortured, Shackled, and Caged in Taliban Captivity

Terrence Russell is the Department of Defense expert on prisoners of war. During his career, he has interviewed more than 100 former prisoners, including famous cases such as Scott O'Grady from the Kosovo conflict and Jessica Lynch from the 2003 Iraq war.

During his weeks of interviewing Bergdahl, Russell never felt that Bergdahl was anything but truthful. Russell explained that Bergdahl was secured by his "feet and hands spread eagle on this metal bedframe" while he was beaten with a rubber hose and a copper cable. Because of the rancid food he was given, Bergdahl suffered from uncontrollable diarrhea for three and a half years. During his captivity, Bergdahl tried to escape almost a dozen times. During one attempt, he avoided capture for more than eight days, which landed him in a metal cage a mere seven feet tall by six feet wide. He spent more than three years in that cage, much of the time blindfolded.

"The conditions of captivity are as horrible as you can possibly imagine; but he continues to resist," Russell said. "He continues to escape. He continues to collect information because he states to us during the debriefing that he knew that he would be an important source of information for the intelligence community and for special operations forces with the information that he was able to collect. He continued to fight."

"Bowe Bergdahl has been accused of many, many things," Russell continued, "but what you cannot accuse him of is his lack of resistance, his willingness to serve his country with honor in captivity, to do what he had to do to maintain his dignity and to return."

Watch VICE News' The Afghan Interpreters (Full-Length)

In the end, Dahl said that for a jail sentence to be handed down at the end of the investigation "would be inappropriate."

Following Dahl's investigation, Abrams assigned an Army lawyer to conduct a formal Article 32 legal investigation, to look into the matter and make a formal recommendation about how the case should be handled and what charges should be brought against Bergdahl.

The Army lawyer completed his investigation and recommended that the Bergdahl case be handled at a special court-martial, the military equivalent of a misdemeanor court. The Army lawyer also recommended that Bergdahl receive neither prison time nor a punitive discharge from the Army. This is highly unusual; no military lawyer VICE News spoke with could recall ever seeing this kind of recommendation.

According to criminal defense lawyer and former Navy Judge Advocate General Brian Bouffard, "Even if the government is able to win a conviction and expose Sergeant Bergdahl to a possible life sentence, I think the likelihood of any confinement is low, and the likelihood of lengthy confinement is almost zero. The aggravated nature of Sergeant Bergdahl's alleged conduct is far outweighed, in my opinion, by the mitigating fact of his five-year imprisonment in the hands of an astonishingly brutal enemy. In other words, his Army career may be ending under less than honorable conditions, but [the] panel of military court members deciding this case are likely to conclude that he has suffered enough and additional confinement is unwarranted."

Although Abrams has decided to send Bergdahl's case to a court-martial, there are still other options available to him. Abrams can accept a plea agreement to a lesser offense, or decide to dispose of the case with an administrative separation. The latter will ensure that Bergdahl will receive medical and mental services from the Department of Veterans Affairs.

This initial determination by Abrams does not appear to have long-term implications for the military justice system, but that could change. Senator John McCain has stated that if there is "no punishment" in the Bergdahl case, he will call "a hearing in the Senate Armed Services Committee." Thus, if the jury or judge doesn't impose punishment on Bergdahl, the military justice system could be in for an overhaul.

Follow James Weirick on Twitter: @JamesWWeirick