« Better Call Saul does law | Main | Narrowing During Oral Argument in Caulkett »

Thursday, March 26, 2015

The surprise in the Bergdahl charges

Yesterday, the Army formally charged Sergeant Bowe Bergdahl for leaving his outpost in Afghanistan (here is a link to the press conference, h/t CAAFLog).  Shortly after he left, he was captured by the Taliban and spent five years in captivity before President Obama swapped him for some prisoners we were holding at GTMO.

The decision to charge Sergeant Bergdahl isn't particularly surprising, and there are reasonable arguments both for going forward and for exercising restraint. 

The first charge, desertion with the intent to avoid hazardous duty, is pretty straightforward and there shouldn't be any real issues with that one.  (The offense was complete the moment he quit the unit with that intent, so the fact that he was in Taliban custody and it was impossible for him to return does not matter.)

However, the decision to charge him under Article 99 of the UCMJ is surprising.  Basically, this is the cowardice statute.  You violate it if you are "before the enemy" and you run away; shamefully surrender your position; cast away your arms or ammunition; act cowardly; willfully fail to "do his utmost to encounter, engage, capture, or destroy any enemy troops" (as in, fight); or fail to come to the aid of your comrades when they are in contact with the enemy, among other things.  This is a serious offense.  Technically, the punishment could be death (although that probably would not survive constitutional scrutiny).

The fear of the shame that is associated with these acts is more powerful than the fear of death.  This fear is what gets soldiers out of foxholes and into the fight.  Service members would rather leave a safe position and face certain death than experience this shame. 

This charge is rarely used.  Charging someone under this statute is the military's way of formally leveling that shame on someone, and my guess is that the person who made the charging decision in this case wanted to make that statement.  This certainly runs counter to the narrative that the President is calling the shots on these types of cases and wants his subordinates to do damage control.  The Army didn't cut Bergdahl any slack.  They just called him about the worst thing that someone in the military can say about someone else in the military.

The Army charged him with, while before the enemy, committing misconduct that endangered the safety of his unit.  At a minimum, the Army can argue that he endangered the safety of his unit by decreasing their fighting strength by one.  There was now one less soldier to guard the perimeter of a combat outpost. 

The Army might also be saying that he endangered his unit by initiating a sequence of events that resulted in his comrades venturing out into dangerous places to look for him, possibly then resulting in the deaths of several service members.  This creates an interesting proximate cause issue.  Bergdahl placed himself in danger by his own wrongful act.  Was it reasonably foreseeable that American soldiers would respond, and then Taliban fighters would kill some of those soldiers?  

If that is the factual theory advanced at the court-martial, then the Army is clearly trying to shame him.  They would be saying that because of his misconduct, American service members died.

The next step is the Article 32 preliminary hearing, where we will learn the details of the Army's factual theory and see if that shame is warranted, or if there are mitigating factors in this case that make that shame inappropriate.



Posted by Eric Carpenter on March 26, 2015 at 12:43 PM | Permalink


"Was it reasonably foreseeable that American soldiers would respond"

I gather it would be -- it is reasonable, and shame factors in there too, that fellow soldiers would, at their own risk, try to find a fellow comrade. The burial scene in "Star Trek: TOS" comes to mind here.

I have seen this flagged, fwiw, online in some of the negative responses to his actions. The charge does sound shameful. Punishment-wise, I think his suffering being in captivity should be taken into consideration. But, merely charging him would not be an issue in that respect. It serves a general deterrence purpose too.

Posted by: Joe | Mar 26, 2015 2:11:22 PM

The comments to this entry are closed.