Every week on Monday morning , the Council and our invited guests weigh in at the Watcher’s Forum, short takes on a major issue of the day, the culture, or daily living. This week’s question: What’s Your Take on The Bowe Bergdahl Situation? What Will The Outcome Be?
The Glittering Eye : As Lord Sankey said in 1935, the presumption of innocence is the golden thread that runs through the criminal law. That is as true of our code of military justice as it is of our civil code. I’m concerned that too many are forgetting that in the case of Bowe Berdahl. Let the case work its way through the courts. That’s what hearings and trials are for.
I do find it interesting that the editors of the New York Times a) assume that Berdahl is guilty and b) think he should be absolved from that for political reasons. There is another ancient legal dictum that covers that: fiat justitia ruat caelum or let justice be done though the heavens fall.
Wolf Howling : On the night of June 30, 2009, Army Spc. Bowe Bergdahl, then stationed in Afghanistan at Outpost Keating, left a note in his tent stating “he was leaving to start a new life.” Bergdahl left his post and made his way into the surrounding countryside, committing a textbook act of desertion per the UCMJ. The Taliban soon made Bergdahl their prisoner.
In the immediate aftermath of his desertion, Bergdahl’s battalion engaged in repeated efforts to find him in operations that claimed the lives of six soldiers. Moreover, Army Command made a decision that Outpost Keating, then slated for closure, should remain open as a base from which to search for Bergdahl. On October 3, 2009, the base was subjected to the one of the largest and bloodiest attacks of the Afghan War, in what has become known as the Battle of Kamdesh. The battle resulted in eight more American soldiers killed and twenty-seven wounded.
The Obama administration, at some point, began secret negotiations with the Taliban for the return of Bergdahl. In violation of U.S. law, the Obama administration agreed to a prisoner exchange with the Taliban without timely notifying Congress. Despite that, the Obama administration claiming general power to act under the Constitution, unilaterally authorized the deal. On May 31, 2014, Bergdahl was exchanged for five top Taliban commanders who, until then, were being held at the Guantanamo Bay prison facility.
In the wake of criticism, the Obama administration defended their deal, laughably claiming that Bergdahl was a soldier with a distinguished record of service. At least three of the five members of the Taliban Five seem poised to resume their efforts against American and Afghanistan interests. The U.S. military recently charged Bergdahl with desertion.
My take is that Bergdahl should be tried for desertion and, if found guilty, be jailed for life. I also believe that Obama’s decision to trade for Bergdahl was part of a larger plan to close Gitmo, but that pushback in the wake of this trade will stop that. Obama, who has made an industry out of violating the Constitution and the laws of our nation, will suffer no penalty for this trade because Congress is too supine to force the issue. Most if not all of the Taliban Five will return to their positions in the Taliban to again plan the death and destruction of Americans.
At the Daily Caller, W. James Antle III opines on one other possible fallout:
The charges against Bowe Bergdahl are not merely embarrassing to the White House. They will further undermine the already shaky confidence in the Obama administration’s nuclear negotiations with Iran.
I don’t see that. The Iran negotiations are orders of magnitude more important than the Bergdahl situation, which is little more than a flash in the pan in the grander scheme of things. Obama has already given the nation countless grounds to mistrust his judgment and veracity as regards the Iran negotiations. The administration’s prevarications and poor judgment as regards Bergdahl are merely more straws on a camels back that is already broken. In the very near future, no one will remember this but as one more sad footnote in the history of the Obama administration. At least, that is, until new American deaths can be traced to the recently released members of the Taliban Five, as seems a certainty. Then the impotent howling will commence yet again.
JoshuaPundit : I pretty much said what I had to say here. The Army had to be dragged kicking and screaming into prosecuting this human detritus because the top brass have all seen what happens to generals whom don’t toe the party line…they get booted out. The Army knew as far back as 2010 when the Pentagon originally investigated this that Bergdahl willfully deserted his post, but they’ve kept stalling. The Army even postponed charging Bergdahl until after the 2014 midterms.
So our our commander-in-chief paid a nice ransom and freed 5 top Taliban commanders from Club Gitmo who have undoubtedly been responsible for more attacks on our troops in AfPak now that they’re free. It also doesn’t surprise me that the Obama regime knew Bergdahl was a deserter but lied to the American people about him ‘serving with honor and distinction.’ They simply don’t care anymore, having gotten away with this kind of thing so many times at this point.
The Army does surprise me though, just a bit. Considering that Bergdahl put his unit in danger and that Bergdahl was directly responsible for the deaths of at least 5 other soldiers whom died trying to find him. I’m convinced the only reason they finally charged him was because this was so blatant it would have resulted in a major morale and discipline issue if they had just swept it under the rug, as they were obviously told to. At that, what we’ve actually got here is not the prelude to a court martial
but the military equivalent of a ‘grand jury’, to stretch this out for months so the end result can be more or less buried.
The end result? They’ll obviously have to try him, whether they want to or not. There’s just too much evidence, including a little love note he wrote before he left. I’m assuming they will not consider AfPak as actual wartime, so a violation of Article 28 of the UCMJ calls for 2-5 years imprisonment, a dishonorable discharge and loss of all pay and benefits.
By time he’s actually sentenced, at worst he’ll probably get two years , and it will be close enough to January 2017 that he’ll merit a presidential pardon or commutation of sentence after serving a few months. when you compare this with how the Pendleton 8 were treated,(all of them were acquitted after going through sheer hell) it makes you wonder…
GrEaT sAtAn”S gIrLfRiEnD: Bergdahl is charged with one count of Article 85 and one count of Article 99.
Article 85 is “desertion with intent to shirk important or hazardous duty.” It carries a maximum potential punishment of a dishonorable discharge, reduction to the rank of private, total forfeiture of all pay and allowances, and five years in prison.
Article 99 is “misbehavior before the enemy by endangering the safety of a command, unit or place.” It carries a maximum potential penalty of dishonorable discharge, reduction to the rank of private, total forfeiture of all pay and allowances, and life in prison.
The UCMJ defines desertion as intent to leave a unit “permanently.”
Army officials associated with Bergdahl’s legal case cannot discuss or disclose the findings of the 2014 investigation while legal actions are pending “out of respect to the judicial process, the rights of the accused and to ensure the proceeding’s fairness and impartiality.”
The date of the hearing has not been announced.
An Article 32 preliminary hearing is similar to a civilian grand jury inquiry. It is designed to determine whether there is sufficient evidence to merit a court-martial.
Based on the outcome of the hearing, a general court-martial convening authority will decide whether to refer charges to a general court-martial, refer the charges to a special court-martial, dismiss the charges, or take any other action deemed appropriate.
One important difference in the military process is that the defendant and defense counsel are present for the hearing and can cross-examine witnesses.
Without a confession from Bergdahl, military lawyers would need to rely on circumstantial evidence to prove his intent, including statements from members of his unit and Afghan villagers who may have come in contact with him after he left the U.S. base.
Depending on the outcome of the Article 32 hearing, Bergdahl’s attorney, could request an administrative solution to his client’s case by requesting that the military discharge Bergdahl in lieu of a court-martial.
Most likely, that is what will happen – a less than honorable discharge.
Personally, “Death To Traitors” may be apropos.
Also, tons of speculation that the Taliban 5 swap for Bergdahl may be the 1st step to shutting down enemy detentions at Guantanamo Bay.
Bookworm Room: In June 2009, when Bowe Bergdahl vanished, those who were paying attention already knew that he was a deserter at best or a collaborator at worst. His reputation amongst his fellow troops was terrible and, as his email correspondence with his father was being made public, it was obvious that Bergdahl wasn’t simply a lost sheep.
By the time of his release from Taliban hands, in May 2014, the military had, not only lost six good men searching for him, it had also had ample time to study everything about Bergdahl’s life until the point of his captivity — and to get to know his family. His father is quite manifestly a Muslim convert, with his beard and headdress and Pashtun and Arabic prayers. Or he has a really, really, bizarre variation of Stockholm Syndrome, to the point at which he’s identifying with his son’s hosts or captors, depending on which story one believes.
Obama knew all of this, and yet he took Bergdahl back in exchange for five men who undoubtedly have killed many Americans and who, know free, will undoubtedly kill many more. Not only that, but he had his mouthpieces fan out and knowingly tell Americans the lie that Bergdahl served honorably and vanished bravely.
Summed up: At all times relevant to Bergdahl’s release, it was manifestly obvious based upon the widely available evidence — almost all of it from Bergdahl’s and his father’s own keyboards — that this was an act of desertion, pure and simple.
So why the “desertion” charge now? This is going to be a show trial. Bergdahl’s lawyers are already claiming (a) that it’s the military’s fault for allowing him to enlist in the first place; and/or (b) that he was trying to be a good soldier by departing in the dark of night, without any of his equipment, to report to another base about infractions on his base. The military tribunal, assuming it’s been properly staffed with “good soldiers,” will accept one or the other of these defenses, and Bergdahl will vanish into obscurity.
Laura Rambeau Lee, Right Reason : Since the Bowe Bergdahl trade last May with the Taliban for five high value enemy combatants held at Guantanamo Bay, many of us were under the impression an Article 32 investigation was underway. The announcement on March 25th reveals that what the Army was conducting all this time was an Article 15-6 investigation, which is a non-judicial investigation utilized for lesser crimes committed while in the military.
We now know Bergdahl has been charged with “desertion with intent to shirk important or hazardous duty” as well as “misbehavior before the enemy.” These charges mean now Bergdahl might receive an Article 32 hearing, essentially like a civilian grand jury hearing, to determine if there is enough evidence to proceed to a court-martial.
Many who have been following the case heard statements from his platoon members, who all appear to agree Bergdahl deserted his post and should be court-martialed. Possibly half a dozen of his platoon mates lost their lives looking for Bergdahl.
After all the fanfare with President Obama and Bergdahl’s family in the White House Rose Garden, and with Susan Rice stating on national television that “he served the United States with honor and distinction”, the political pressure on the military must be intense to make this case go away.
I suspect the outcome of this will be Bergdahl’s attorney will ask for, and the Army will grant, an administrative discharge, avoiding an Article 32 hearing altogether. This means he will receive an “other than honorable” discharge and will not serve any jail time.
What is most disturbing is that our military, caving under the political pressure of this administration, delayed and continues to delay bringing the Bergdahl desertion case to court martial.
Well, there you have it!
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