Is Bowe Bergdahl a Deserter? A Traitor?

If you’ve watched the news or accessed your social media accounts over the past week, then you’ve heard at least something about the return of American POW Sgt. Bowe Bergdahl in exchange for five Taliban detainees held at Guantánamo Bay, Cuba.  There are numerous issues swirling around, but I want to hone in on the issues raised by the title of this post.

Almost immediately after Bergdahl’s return was announced, cries of “deserter” and even “traitor” were heard.  I think we’ve all come to expect such histrionics from media personalities and other commenters, but the denunciations were’t limited to those quarters.  In this instance, it was also Bergdahl’s fellow soldiers lobbing the accusations.  Perhaps none put it more plainly than Nathan Bradley Bethea, writing for The Daily Beast:

I served in the same battalion [the 1st Battalion, 501st Parachute Infantry Regiment] in Afghanistan and participated in the attempts to retrieve him throughout the summer of 2009. After we redeployed, every member of my brigade combat team received an order that we were not allowed to discuss what happened to Bergdahl for fear of endangering him. He is safe, and now it is time to speak the truth.

And that the truth is: Bergdahl was a deserter, and soldiers from his own unit died trying to track him down.

That’s a strong accusation, but Bethea isn’t alone in making it.  I think, however, it’s fair to ask whether such an accusation has as much merit as some folks seem to think it does.

As a member of the armed forces, Bergdahl is subject to the Uniform Code of Military Justice.  As you might expect, desertion is one of the “punitive articles” of the UCMJ and it has a codified definition. Section (a) of Article 85 of the UCMJ reads as follows:

(a) Any member of the armed forces who—

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or

(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States;

is guilty of desertion.

Obviously, subsection (b) doesn’t apply in Sgt. Bergdahl’s case, so we can skip it.  As far as section (c) is concerned, I don’t think there’s any real question as to how a court-martial would come down on the legal question of whether the alleged offense was committed in time of war.  Consequently, assuming the military prosecution decides to seek the death penalty against Bowe Bergdahl, this section would seem to give them that option.

In a prosecution for desertion, the focus would be on whether the government could establish the elements of one of the subsections under section (a).  Again, I think it’s obvious that subsection (3) does not fit the circumstances so we need not discuss it.  Subsections (1) and (2) seem to be a better fit.  There is no disagreement that Bergdahl was “absent from his unit, organization, or place of duty” and that such absence was “without authority.”  I’m not sure what the technical difference between going or remaining absent in subsection (1) and quitting “his unit, organization, or place of duty” in subsection (2) is, but it seems to me that a common definition of “quit” is to leave a place.  I think it would be safe to assume that Bergdahl’s case would meet the definition of either of the first parts of those subsections.

The real question, however, lies in the latter parts of subsections (1) and (2).  There we find that the absence or quitting must be either “with intent to remain away therefrom permanently” or “with intent to avoid hazardous duty or to shirk important service.”  Written in that way, the UCMJ makes desertion a crime of specific intent.  Thus, the clearly established facts of Bergdahl’s leaving the base are in sufficient by themselves to convict him of desertion.  The prosecution would also need to prove either that Bergdahl intended to leave permanently or that he intended to avoid hazardous duty or shirk important service.

I don’t know whether the prosecution would be able to prove that element of the offense beyond a reasonable doubt, but Bergdahl certainly didn’t help himself in that regard if some of the statements he apparently made to his fellow soldiers are true.  For instance, according to Cody Full, a member of Bergdahl’s platoon “He had sent all his belongings home — his computer, personal items.”  Bergdahl also reportedly talked often of wanting to see what was on the other side of the mountains and wondered whether he could get to China from there.  Other soldiers claim that Bergdahl talked about walking to India and say that he gave the impression that he wanted to go explore Afghanistan without the military ordering him around.

A good defense attorney can argue that those things don’t prove beyond a reasonable doubt an intent to leave permanently.  They certainly raise questions, but a desire to explore doesn’t equal a desire to desert.  Certainly the fact that “He wouldn’t drink beer or eat barbecue and hang out with the other 20-year-olds” proves nothing beyond the fact that Bergdahl wasn’t like many of his fellow soldiers.  Being a little bit different or even odd is no crime.

The most damning piece of evidence against him, however, might have been one of his own making.  According to a former senior military officer “Bergdahl left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life.”  That note, if it exists and can be entered into evidence, would probably seal the deal against Bergdahl.  The other statements and circumstances can be argued around; even the fact that Bergdahl only “took with him a soft backpack, water, knives, a notebook and writing materials, but left behind his body armor and weapons” suggests that he did not intend to leave permanently.  On his best day, I doubt that Johnnie Cochran could come up with a way to counter the effect of that note.

Still, just because the military potentially has an airtight case against Bergdahl (depending on the existence and authenticity and admissibility of the note), that doesn’t necessarily mean they’ll go forward with a desertion prosecution.  There are political considerations that I won’t consider fully here.  It seems to me, however, that not the least of those would be the fact that (at least as far as I know), no American prisoner of war has even been tried for desertion.

As for the charge of treason, I think there’s almost no chance that he will be charged and effectively no chance at all that the government could hope to get a conviction.  Treason, of course, is the only crime specifically mentioned in the Constitution (in Article III, Section 3):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The counterpart in the U.S. Code is 18 U.S. Code § 2381. The UCMJ’s punitive articles contain a charge for “aiding the enemy” (Article 104), but that’s not quite the same thing as “treason” (although it is one of the articles under which Chelsea/Bradley Manning was prosecuted).

If there’s evidence  that Bergdahl levied war against the United States or adhered to or aided its enemies, I haven’t seen anything to that effect reported anywhere.  Granted, I’m not privy to all of the information that Secretary Hagel and President Obama might have, but even Bergdahl’s harshest critics don’t seem to be suggesting that he did anything treasonable.  Even if Bergdahl is guilty of desertion, leaving his post, by itself, does not seem to me to rise to the level of any of the required elements of a prosecution for treason.

In addition, it seems completely impossible that the government could come up with two witnesses to the same overt act.  If Bergdahl aided the enemy or waged war against the United States, the only witnesses to any such act would be the enemies themselves.  The implications for a potential treason prosecution should be obvious.  Neither do I think the government would expect Bergdahl to make an open confession in court.  In other words, the idea of prosecuting Bowe Bergdahl for treason is not going to go anywhere, regardless of how much some people might be calling for it.

And since this seems to be a theme for me lately, I’ll say a word about defamation.  The terms “desertion” and “treason” are terms with precise definitions.  Bowe Bergdahl is, as of this writing, still an active member of the military; he is a professional soldier.  False statements that tend to injure a person in his profession are considered defamation per se (i.e., the plaintiff is not required to prove special damages, but damages are presumed).  If I were one of the members of Bergdahl’s units, I would be very careful about what I say about him.  He might get convicted of desertion, but he might not.  In that event, I don’t see how those who called him a “deserter” can escape a defamation lawsuit by claiming some version of “Well, that’s not what I meant.”  Yes, Bergdahl walked off base without permission and didn’t come back; those are the facts of the situation, but whether he “deserted” is a slightly different question, I think.

Regardless of whether his fellow soldiers could maneuver their ways around that legal issue, calling what he did “treason” is something I would consider extremely ill-advised.  Accusing a member of the military of the crime of waging war against the United States and helping its enemies is, without a doubt, the most damaging thing to a soldier’s professional reputation that anyone could say.    I can’t say that I know that Bowe Bergdahl is litigious enough to ever go after any of the statements that have been made about him (and based on what I read about him in Rolling Stone’s piece from a couple of years ago, I think he’d much rather fade back into obscurity), but it seems to me that if he wanted to he would have at least arguable grounds to do so.

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