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Attorney for Bowe Bergdahl: Army Report Shows Ex-POW Left Base to Report Wrongdoing, Not Desert Unit

The US Army plans to charge Sgt. Bergdahl.

The U.S. Army says it plans to charge Sgt. Bowe Bergdahl with desertion and the rare charge of misbehavior before the enemy after he was held and tortured in Taliban captivity for five years when he left his base in Afghanistan in 2009. He was freed in 2014 in exchange for five Taliban prisoners held for years at Guantánamo Bay. Now Bergdahl’s defense could center on an Army probe that found he walked off his post in an attempt to reach another U.S. base to report on wrongdoing in his unit. An earlier military report found Bergdahl likely walked away on his own free will, but stopped short of finding that he planned to permanently desert U.S. forces. We get the details from his lawyer, Eugene Fidell, a lecturer at Yale Law School and co-founder and former president of the National Institute of Military Justice.


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We turn now to developments in the case against Army Sergeant Bowe Bergdahl, who was held in Taliban captivity for 5 years after leaving his base in Afghanistan in 2009. He was freed last year in exchange for 5 Taliban prisoners who were held for years at Guantánamo. Then, last week, the Army announced plans to charge him with one count of desertion and one count of misbehavior before the enemy. If convicted, he faces life in prison. Bergdahl’s defense against a desertion charge could center on an Army investigation’s finding he walked off his post in an attempt to reach another U.S. base to report on wrongdoing in his unit. And that he did not plan to permanently desert.

The investigation has not been released, but CNN cites senior defense officials who say Bergdahl claimed to be concerned about problems with order and discipline at his post in Paktika Province in Afghanistan and also had concerns about, “leadership issues” at his base. The next step in Bergdahl’s case is an Article 32 hearing, a procedure similar to a grand jury.

For more we turn to Eugene Fidell, the lawyer for Army Sergeant Bowe Bergdahl. He joins us from Yale University, where he is the Florence Rogatz Visiting Lecturer in law at Yale Law school. Fidell is a cofounder and former president of the National Institute of Military Justice. Welcome to Democracy Now!. Can you talk about the charges against your client, Bowe Bergdahl?

EUGENE FIDELL: Well, there are two charges, Amy, one, as you mentioned, is a charge of desertion, the other is a very unusual — let me back up. There’s a lot of cases of desertion and they are typically handled at a very low level in the military justice system. The other charge is misbehavior before the enemy in that he left and, that is the gist of it. It’s simply that he left and it was in a battle zone. At least that is the allegation. Those cases are extremely rare. It’s under a statute that is kind of a museum piece that dates back to the very early days of the republic.

There’s probably something like it in the Articles of War George III signed in 1774. It’s a very, very rare charge and frankly, I have been doing this since 1969, I can’t remember a case of an actual prosecution for that charge.

AMY GOODMAN: And, I mean, explain what it means, “misbehavior before the enemy.”

EUGENE FIDELL: Well, typically, the charge entails things like dropping your rifle or running away from a battle, this kind of thing. What the Army seems to have done here, is gotten creative and turned it into a sort of catch-all where they can take any other offense, in this case an offense of desertion which they are also charging, and sort of escalate the whole thing into world war III by calling it misbehavior before the enemy.

AMY GOODMAN: Eugene Fidell, you wrote in your memo about the army’s report on Bowe Bergdahl, “While hedging its bets, the report basically concludes that Sergeant Bergdahl did not intend to remain away from the army permanently, as classic long desertion requires it also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.” Can you explain this?

EUGENE FIDELL: Well, I’m not going to any more detail than the letter I sent in the letter to General Milly, the Commander of U.S. forces command, early in this month. The reason for that is, I think all of this is going to come out, has got to come out. And I want to make one point if you do not mind, Amy, the army has a substantial report for a Major General Kenneth Dahl, who investigated this thing to the hilt. He had something like 22 investigators going around for months and months, talking to everybody, examining all possible documents. The gist of what he said is, you can infer from what i wrote in my letter to General Milley. And frankly, I think it’s incumbent on the army to release General Dahl’s report.

Obviously, there are some health-related things that are in the report and Privacy Act stuff but, basically, the report ought to be out there so the American public can look at it and not be subject to the kind of rumor mongering that has been going crazy lately.

AMY GOODMAN: I want to read from Bergdahl’s own description of his time held by the Taliban. Quote, “I was kept in constant isolation with little to no understanding of time, through periods of constant darkness, periods of constant light, and periods of completely random flickering of light and absolutely no understanding of anything that was happening beyond the door i was held behind.” Bergdahl also wrote that for years he was chained on all fours, or locked in a cage, and that the sores on his wrists and ankles from the shackles grew infected. He said he was malnourished and quote, “my body started a steady decline and constant internal sickness that would last through the final year.” How has his five-year imprisonment been described by the military?

EUGENE FIDELL: They haven’t really described it. In fact, General Dahl’s report, which I referred to before, which the summary of it, Amy, is 57 pages long, single spaced as I recall. The summary spent something like 8 words on his treatment while he was in captivity. So, the Army has not described this in any detail. They are more interested in delving into offenses from the 18th century.

AMY GOODMAN: And so, how do you think that should be weighed in what will happen to him, the fact that he was a prisoner of war for five years, where held, where he was tortured, where he largely sick during that time and attempted to escape, Sgt. Bergdahl writes, in his own words, 12 times?

EUGENE FIDELL: Oh, I think that’s entitled to very considerable weight in the broad judgement as to how these charges should be disposed of. This is the broadest kind of discretion that the military knows. You’d have to have a heart of stone not to take this kind of experience, prolonged for five years, into account. People in the military are human beings, they are not automatons. And I expect and hope that those who are ultimately going to have to make a decision here as to what should be done — and an article 32 investigation doesn’t commit anybody to anything — will take this into account.

AMY GOODMAN: I want to play a comment from Lieutenant Colonel Michael Waltz, who says he led the search Bowe Bergdahl. This is a clip from his interview on Fox News last week, starting with host Sean Hannity.

SEAN HANNITY: I know we lost at least six soldiers — is six the number — and how many others were injured in the search for him?

LT. COL. MICHAEL WALTZ: The disturbing thing is that the Taliban knew that we were pulling out all the stops to look for him and were feeding false information into our informant network. So, they were baiting us into ambushes. In one case they baited us into a house rigged to explode, thank god it didn’t. But, soldiers died looking for him.

AMY GOODMAN: That’s Lieutenant Colonel Michael Waltz. But, Eugene Fidell, you’ve said the Army’s report found no evidence that any soldier died searching for Sergeant Bergdahl.

EUGENE FIDELL: Right, well, first, the comment Mr. Waltz, who I believe was a junior officer in Afghanistan, also has on his webpage that he worked for Vice President Cheney, just for background. The Army said in its report what I said in my letter to General Milley. I think it is incumbent on the Army to make the facts known. I also am concerned that something that Mr. Waltz may have said might be classified. I assume somebody will watch this and make a determination on that.

AMY GOODMAN: What do you mean?

EUGENE FIDELL: That’s about all I want to say on that. I am not going to go any further.

AMY GOODMAN: Eugene Fidell, you wrote in your memo that the Army’s report recommends that Sgt. Bergdahl be stripped of his status as a missing-captured prisoner of war. You note, “International humanitarian law does not distinguish between personnel who have deserted and personnel who have not.” You also cite everyone from Bergdahl’s captors to President Obama calling him a prisoner of war. This is Obama announcing Bowe Bergdahl’s release last June.

PRES. BARACK OBAMA: We’re committed to winding down the war in Afghanistan and we are committed to closing Gitmo. But, we also made an ironclad commitment to bring our prisoners of war home. That’s who we are as Americans. It’s a profound obligation within our military and today, at least in this instance, it’s a promise we have been able to keep.

AMY GOODMAN: The significance Eugene Fidell?

EUGENE FIDELL: That quote speaks for itself. Everybody in the picture understood that sergeant Bergdahl was a prisoner of war. The International Law of Armed Conflict does not distinguish between prisoners of war who are — or prisoners who are absent without leave versus prisoners who are not absent without leave. The status is precisely the same under international humanitarian law, as it’s called. And I think it is preposterous that the Army at this late date might even consider changing his status. After all, he was locked up by the other side in the most horrible conditions. Conditions that none of us would possibly ever want to endure, and he endured them for five years. To his credit, I think, he did what soldiers are supposed to do when they are taken prisoner and attempted to escape. He attempted to escape something like 12 times, starting from the very beginning. The Taliban punished him severely when they caught him again and again.

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