Presumed Innocent: Bergdahl ‘Can Testify or He Can Lawyer Up’

When he recovers sufficiently to return to the United States, Army Sgt. Bowe Bergdahl will be able to see his family–and experience freedom–after five years of Taliban captivity.

But once he arrives home to Idaho following a stay at a medical facility in Landstuhl, Germany, Bergdahl will encounter the military justice system like any other soldier who leaves his post during war.

Politicians and ordinary Americans may continue to debate the logic and process by which the Obama administration exchanged Bergdahl, the last remaining prisoner of war in Afghanistan, for five senior Taliban leaders. Another important process, however, will play out to determine Bergdahl’s ultimate standing with the military.

“Leaving your post is a significant thing in the military,” said Steve Bucci, a foreign and national security policy expert at The Heritage Foundation who is a former top Pentagon official and Army Special Forces officer. “If it is something where he walked away with malice, or he said, ‘I am done being a soldier,’ it is still significant.”

Bucci and another Heritage expert, Charles “Cully” Stimson, who previously coordinated the Pentagon’s global detention policy and operations, including at Guantanamo Bay and in Iraq and Afghanistan, told The Daily Signal that Army officials likely are at least speaking informally with Bergdahl as he recovers.

Soon–though a precise timetable is difficult to predict, given Bergdahl’s unknown condition–the investigation will intensify.

“The primary concern of the government right now is monitoring Bergdahl’s ability to function mentally and physically,” said Stimson, a senior legal fellow at Heritage. “The Army is already in the investigative stage, updating the investigation that began after he first left [in June 2009]. He will be given the opportunity to answer questions about why he left his post. Then begins the accountability phase, where his case will go to the military justice system.”

One of the many unanswered questions about Bergdahl’s disappearance is whether he was a deserter who never intended to come back, or someone who left camp for a brief getaway amid lax security and then was captured.

Either way, Stimson says, unauthorized absence from duty is a crime under the Uniform Code of Military Justice (UCMJ).

Based on rights guaranteed to him by Article 31b in the UCMJ, Bergdahl may never reveal the motive behind his departure–because he doesn’t have to do so.

Related: Analysis by Cully Stimson: How Military Justice Works 

When military personnel read Bergdahl his rights before questioning him, they will inform him of the specific nature of any accusations and advise him that he does not need to make a statement.

“He is presumed to be innocent,” said Stimson, who also is a trial lawyer and has worked as a prosecutor at the local, state, and federal level. “He can testify or he can lawyer up. If I were advising him, I would tell him to get a lawyer and don’t make any statements. But that doesn’t mean ‘case closed.’ His squad mates have already commented, and the Army can get additional witness statements.”

Depending on the findings of the investigation, the convening authority (or commanding officer, often an admiral or general) has a range of punishment options:

  • Do nothing, because the evidence does not warrant action. If this happens, Bergdahl likely would exit the Army with an honorable discharge.
  • Under Article 15 of the UCMJ, the commanding officer can administer non-judicial punishment, where a court-martial is not required. If Bergdahl accepts that status, he could receive a reduction in pay and rank as well as other reprimands.
  • If the Army finds Bergdahl violated the UCMJ, it can send him to an administrative discharge board. The board, comprised of three military officers, reviews the evidence and determines whether misconduct occurred. The board then can retain Bergdahl in the military or discharge him from service.
  • The commanding officer can refer Bergdahl’s case to a court-martial. As in a civilian criminal trial, the accused has rights, including the right to counsel, to remain silent, and to cross-examine and call witnesses on his behalf. A military judge makes the ruling, but the accused can request to be tried by a military jury instead.

In an analysis posted today on The Daily Signal, Stimson lists possible charges.

The larger implications of the Obama administration’s Taliban prisoner exchange continue to develop. Sen. Ted Cruz, R-Texas, has introduced legislation that would halt further prisoner transfers from Guantanamo Bay.

Following last weekend’s prisoner exchange, 149 designated terrorists remain detained at the prison.

Bucci said the exchange could be seen to set a precedent that terrorists can use Americans as bargaining chips.

“This deal has conveyed the message that it is really lucrative to kidnap our folks,” Bucci said. “The payoff for the terrorists is a huge one. Regardless of Obama’s intent, we have convinced our enemies that it is in their interest to snatch Americans.  They know now we’ll pay.”

Stimson, a Navy JAG captain who has served since 1992, says the administration’s willingness to negotiate for Bergdahl’s release does not necessarily project weakness or make terrorists more likely to capture Americans.

“There has never been a risk-free transfer from Gitmo,” Stimson said. “The chance of getting captured, for an American serviceman, is less than the threat of being killed. The danger to American service personnel is already very high.

“Sgt. Bergdahl is one of those who volunteered his service for the U.S. Army. The American people must withhold judgment until the facts are known.”

Source material can be found at this site.

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