Article 85 (Desertion) is an intent crime the main burden of proof of the crime is the intent not to return to military control. Desertion charges in the past have been tossed when the defendant maintained military identification tags (dog tags). Sgt. Bergdahl had his dog tags, the Taliban took them from him and showed them on televised interviews. Sgt. Bergdahl was held by the Taliban and could not return.
This should be an extremely easy charge to defend, a defense counsel’s dream case; so why is Sgt. Bergdahl facing this charge and specification, a death penalty charge, in a general court martial?
The second charge he is facing is a bit easier to comprehend given the dearth of facts we have to work with. In Article 99, “Misbehavior Before the Enemy,” the first of the burden of proof elements is running away in the presence of the enemy, apparently a slam dunk as are three more elements of the charge.
The President of the United States had Mr. and Mrs. Bergdahl, SGT. Bergdahl parents, in the White House; President Obama openly hugged them in the Rose Garden with the cameras rolling. Mr. Bergdahl publicly thanked the President for saving his son. The leaders of our government went on the Sunday news shows and cheered Sgt. Bergdahl’s return and celebrated his “honorable and noble service;” after all of that, my Army charges him?
What we do not know must be monumental; a vast amount of evidence unknown to the general public has to have been gathered. No general court martial convening authority (a general officer in the direct chain of command) given the politics of this case would dare charge Sgt. Bergdahl unless the evidence against him was massive and unquestionable. The commander in chief and the entire civilian chain of command would love for Sgt. Bergdahl to go away, far away.
For him to have been read charges tells us this cannot be swept under the rug and a very strong case has been built. The chain of command all the way to the President has to be terrified of the evidence becoming public or they would have simply given him an other than honorable discharge and be done with him.
The fact Sgt. Bergdahl was traded for five terrorist general officer level prisoners has no bearing on his court martial; it will not be mentioned nor should it be. The status of the Guantanamo Bay confinement facility is also of no concern to the Court Martial Board.
The Military Justice System is fast and uncomplicated; it moves at light speed compared to the civilian judicial system. Sgt. Bergdahl’s case took well over three times as long as it should have to investigate; we must wonder why. I spent six years commanding United States Army Criminal Investigations Command (CID) units and would not have tolerated this Report of Investigation (ROI) taking one day longer than three months; it took over nine.
Let’s be real — politics is in everything and the military is no different. The elected officials authorize every penny spent, every officer promoted, every weapon purchased, every nail in every military house, what is eaten, cooked, spent and drunk. The military budget has tighter controls on it than any other government department or agency. The military chain of command does not like to anger the civilian command authority, and court martialing Sgt. Bergdahl will anger the President and the political appointees in the Department of Defense as well as most elected Democrats. The only logical explanation is a set of facts surrounding the Sgt. Bergdahl’s desertion that cannot be denied, covered up or rationalized;
We cannot forget that six good Americans died searching for Sgt. Bergdahl; during the Rose Garden ceremony President Obama conveniently forgot their sacrifice as he canonized an alleged coward and deserter.
The General Court Martial of Sgt. Bergdahl needs to be accomplished in a rapid, fair, just and open manner with no outside command or political influences; it can happen that way. We all should allow the military justice system to work as designed, as it has for hundreds of years, and not tolerate politics to influence a dammed good and fair system. If Sgt. Bergdahl is found guilty as charged his punishment will be for his actions and his actions only; President Obama and American foreign policy are not on trial.