Bowe Bergdahl to face most serious kind of court-martial in Army desertion case

Bowe Bergdahl, 29, is charged with desertion and misbehavior before the enemy. Photo / Getty Images

Army Sgt. Bowe Bergdahl will face general court-martial in connection with his 2009 disappearance from his base in Afghanistan, the service announced on Monday, raising the possibility that the soldier could face life in prison after being held captive for five years.

Bergdahl, 29, is charged with desertion and misbehavior before the enemy. He has been a political lightning rod since he was exchanged in May 2014 in a prisoner swap approved by the White House in which five Taliban officials were released from the military prison in Guantanamo Bay, Cuba, and kept under supervised watch in Qatar.

The decision was made by Gen. Robert Abrams, the four-star commander of U.S. Army Forces Command at Fort Bragg, North Carolina. It came after Bergdahl broke his silence last week by participating in the popular podcast "Serial." The weekly podcast obtained 25 hours of recorded conversations between Bergdahl and film producer Mark Boal with Bergdahl's approval.

The decision is more severe than what was recommended by an Army officer, Lt. Col. Mark Visger, who oversaw a two-day hearing for Bergdahl's case in September, according to Bergdahl's lawyer. Visger recommended that Bergdahl face a lower form of judicial proceeding known as a special court-martial, which would have come with a maximum penalty of 12 months of confinement.

An arraignment hearing will be held at a later date at Fort Bragg, Army officials said. Bergdahl is currently assigned to Joint Base San Antonio, Texas, with a desk job.

General court-martial is the highest level of trial in the military justice system. If convicted, Bergdahl could face anywhere from life in prison to no confinement. Desertion can carry a death penalty, but Army officials have said that will not occur in Bergdahl's case. No U.S. service member has been executed for desertion since World War II.

Bergdahl's attorney, Eugene Fidell, said Monday that Abrams "did not follow the advice of the preliminary hearing officer." Bergdahl's defense team "had hoped the case would not go in this direction," Fidell said.

"We will continue to defend Sgt. Bergdahl as the case proceeds," Fidell said. "We again ask that Donald Trump cease his prejudicial monthslong campaign of defamation against our client. We also ask that the House and Senate Armed Services Committees avoid any further statements or actions that prejudice our client's right to a fair trial."

A spokesman for Abrams, John Boyce, said that the decision to go forward with a general court-martial now has nothing to do with Bergdahl's participation in the "Serial" podcast.

Bergdahl left a tiny combat outpost June 29, 2009, just before midnight in an area in which the Taliban were known to operate. He wanted to cause a large enough crisis to get the attention of a general officer and relay concerns he had about his leaders, according to a senior officer who investigated his case, Lt. Gen. Kenneth Dahl, and Bergdahl in the recording released through "Serial." The designation is known as a DUSTWUN, an acronym short for "duty status-whereabouts unknown."

Bergdahl was captured within hours, and moved within days over the border into Pakistan. His loss prompted a monthslong manhunt that ran American troops in the region ragged and spawned operations in which their lives were put in danger, Army officials allege.

Bergdahl, meanwhile, was held by the Haqqani network, a group affiliated with the Taliban. He was moved several times over the next five years, tortured and kept primarily in the dark and isolated from other people.

Bergdahl said on a "Serial" episode released last week that within 20 minutes of him leaving his base, Observation Post Mest-Malak, with plans to go to the larger Forward Operating Base Sharana, he had second thoughts. He realized he would face a "hurricane of wrath" from commanding officers, and deviated from his plan to find intelligence that he hoped would make the Army go easier on him, but got lost in some hills and captured by Taliban on motorcycles, he said.

"Doing what I did is me saying that I am like, I don't know, Jason Bourne. . .. I had this fantastic idea that I was going to prove to the world that I was the real thing," Bergdahl said. "You know, that I could be what it is that all those guys out there that go to the movies and watch those movies, they all want to be that, but I wanted to prove that I was that."

Dahl, the investigating officer of the case, said during the preliminary hearing in September that Bergdahl had outsize perceptions of his own ability as a soldier, and judged others unrealistically harshly. Other soldiers in Bergdahl's unit did not see the same problems with leadership that he did, Dahl said.

A panel of psychiatrists found that Bergdahl was suffering from a mental defect when he walked away from his base, Fidell said during the hearing.

A former enlisted specialist in Bergdahl's infantry company, Jon Thurman, said in a phone interview on Monday that he wasn't surprised by the Army going forward with a general court-martial. Thurman, who also was interviewed for "Serial," speculated that Bergdahl's comments in the podcast could hurt his case.

"When that first episode aired, I mean, he sort of hung himself by saying that he walked off and was kinda thinking about doing his own Jason Bourne thing," Thurman said. "The guilty verdict might come from just that."

Thurman doesn't know what will happen during the coming proceedings but just wants to see Bergdahl punished.

"I want to see him serve time for what he did," he said.

Another soldier in Bergdahl's battalion, former Capt. Nathan Bethea, said that he was dumbfounded when he heard Bergdahl say on "Serial" that he deliberately walked away, even though his legal team had acknowledged it previously.

"Hearing it his own voice, hearing him say I deliberately caused a DUSTWUN, it's hard for me to get away from saying, 'Hey, this is desertion and misbehavior before the enemy,'" Bethea said. "After I heard it, there's no way to get away from it."

A spokesman for Rep. Duncan Hunter, R-Calif., whose office has closely tracked the case, questioned whether Bergdahl participating in the podcast may have forced the Army to seek the most serious form of trial.

"He came across nuttier than anyone could have foreseen, and there was already consensus he wasn't all together to begin with," said the spokesman, Joe Kasper. "There has to be little sympathy left, where there was some to take."

Fidell, Bergdahl's attorney, expressed frustration that the case continues to be politicized. Republicans in the House Armed Services Committee accused the White House in a report released last week of having an ulterior motive in exchanging Bergdahl for Taliban officials: closing down the Guantanamo Bay prison.

The report said that the congressional committee will "remain abreast of the disciplinary process which is underway" and "ensure that standard procedures are properly implemented and administered."

The case should be handled by the courts, not politicians, Fidell said.

"That's not their role at all," Fidell said of the committee. "This is a dog whistle."