“There Were No Good Options”: Bergdahl Should Get Honorable Discharge, Says Lawyer for Deserters

The Taliban has released a video showing the hand over of Army Sergeant Bowe Bergdahl to U.S. Special Operations Forces in the deal that saw the U.S. exchange five high-ranking Taliban militants held at Guantánamo bay. Despite winning the freedom of the only known U.S. prisoner of war, the deal has come under Republican attack amidst reports Bergdahl voluntarily left his base after growing opposed to the war in Afghanistan. Army officials say they will investigate whether Bergdahl engaged in misconduct, and several of the soldiers who served with him have taken to the media to call him a deserter. “[Bergdahl] is speaking as someone who has seen firsthand what the American imperial machine is all about … and is responding from a very core, visceral place,” says James Branum, a lawyer who specializes in representing U.S. military deserters and conscientious objectors. “One can’t help be moved by that.” Branum adds that most other soldiers convicted of desertion, including many of his clients, have received six to 24 month sentences. “[Bergdahl] has already effectively served more jail time than anyone ever has in the modern era for desertion, in his time as a POW. Given that, there is no reason to punish him.”


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

NERMEEN SHAIKH: The Taliban has released a video reportedly showing the handover of Army Sergeant Bowe Bergdahl to U.S. special operations forces five years after he was taken captive. In the video, a clean-shaven Bergdahl is shown sitting in a pickup truck prior to his release. One of the men tells him “don’t come back to Afghanistan. Next time we catch you, you won’t leave here alive.” He is then brought out of the truck as a Blackhawk helicopter lands in a nearby open field. Two of the men, one waving a white flag, lead Bergdahl to meet three men and what appear to be civilian close. The men pat him down and flash a thumbs-up, then lead them into the helicopter where U.S. soldiers appear to be waiting. Seconds later, the helicopter lifts off. Bergdahl was released over the weekend in exchange for five high-ranking Taliban militants who had been held at Guantánamo Bay. The White House has apologized to keep lawmakers for not notifying them of the prisoner swap in advance. Speaking with reporters on Tuesday, Senator Dianne Feinstein said she received a call Monday night.

SEN. DIANE FEINSTEIN: Unless something catastrophic happened, I think there was no reason to believe that he was instant danger. There certainly was time to pick up the phone and call and say, I know you all had concerns about this. We consulted in the past, we want you to know we have renewed these negotiations. It would give us an opportunity to ask questions and hopefully obtain answers. Now, that was not there, so therefore, we are hit with a certain set of circumstances, intelligence that we knew, policies that we knew, that were changed and a law that was essentially disregarded.

REPORTER: Senator Reid said he found out about this on Friday, though, and Speaker Boehner didn’t find out ’til Saturday. Does it at all concern you about the optics of that, that Senator Reid found out ahead of time?

SEN. DIANE FEINSTEIN: I’m not going to get into that.

REPORTER: Have you had an apology from the White House for how this was handled,and — ?

SEN. DIANE FEINSTEIN: Yes, I did have a call last night from the White House. And they apologi — he apologized.

REPORTER: Are they acknowledging the law was broken in that apology?

SEN. DIANE FEINSTEIN: No, I didn’t ask for that. I mean, it was obvious — it’s obvious.

NERMEEN SHAIKH: Meanwhile, House Speaker John Boehner has endorsed a call for congressional hearings to look into the administration’s handling of the prisoner swap. Senator John McCain also criticized the deal that led to Bergdahl’s release.

SEN. JOHN MCCAIN: This decision to bring Sergeant Bergdahl home, and we applaud that he is home, is ill founded. It is a mistake and it is putting the lives of American servicemen and women at risk, and to me, and that to me is unacceptable to the American people. These people have dedicated their lives to destroying us. These people have dedicated their very existence. Why do you think when the judgment was made that if they released them, it would cause great risk to the United States of America?

NERMEEN SHAIKH: During a news conference Tuesday in Poland, President Obama responded to the brewing controversy.

PRESIDENT BARACK OBAMA: Let me just make a very simple point here, and that is, regardless of the circumstances, whatever the circumstances may turn out to be, we still get an American soldier back if he’s held in captivity. Period. Full stop. We don’t condition that. And that is what every mom and dad who sees a son or daughter sent over into war theater should expect from not just their commander-in-chief, but the United States of America.

AMY GOODMAN: All of this comes as Army officials now say they will pursue an investigation into whether Bowe Bergdahl should still be disciplined if they find evidence of misconduct, such as desertion. Several of the men who served with Bergdahl have taken to the media to call him a deserter. Some have also blamed him for the deaths of six to eight soldiers who went out looking for him, they say. But The New York Times reports that a review of casualty reports and military logs suggests the facts surrounding the deaths are far from definitive. Two of the soldiers who died during the most intense period of the search after Bergdahl disappeared June 30, were inside an outpost that came under attack and not on patrol looking for him. The other six soldiers died in late August and early September. For more we’re joined by two guests, in Oklahoma City, James Branum is a lawyer who specializes in representing military deserters and conscientious objectors. He’s also legal director for the Oklahoma Center for Conscience and Action and author of, “U.S. Army AWOL Defense: A Practical Guide.” In London, England, we’re joined by Charles Glass, a historian and former ABC News Chief Correspondent. His book, “The Deserters: a Hidden History of the Second World War.” In it he tells the stories of three men whose lives dramatize how the strain of war can push a soldier to the breaking point. They are among some 50,000 American soldiers who deserted in the European theater during World War II. We welcome you both to Democracy Now! James Branum, let’s begin with you. Your response to the controversy that is growing around the release of Bowe Bergdahl?

JAMES BRANUM: The most important thing we have to remember is that we do not know the facts. Yesterday in The New York Times, the headline was, the facts are murky. We really do not know, and this is really a key thing here. If the allegations are true, even then we have to say that what happened is the result of war itself. This is not uncommon, this is not unexpected. War is messy. Things get crazy.

In this case, what has been alleged is that Sergeant Bergdahl was struggling with issues of conscience, that there were major concerns that he had. When people are under the strain of conscience, a feeling like they’re violating what they believe, they do things that may not be logical. If the allegation is correct that he left the post, this is not something you do unless you believe you have no other choice but to violate your conscience. It was effectively was a suicidal kind of act.

In this case, though, he believed — it seems like that, if true, it was a matter of either violate my conscience and stay or potentially suffer my own loss of life. It is unfortunate he did not know the full range of options yet under the law. But, one of the problems is the military does not inform soldiers of their rights under the law to seek a discharge on the grounds of conscience or to seek other ways of relief. I think we have to look at the full context here. Fundamentally, we really don’t know the facts yet.

NERMEEN SHAIKH: James Branum, could you elaborate on that? What are some of the options available to soldiers who are struggling with their conscience in conditions of war? What could he have done, Bergdahl, had he known what his options were?

JAMES BRANUM: U.S. Military regulations allow for a service member who is currently a member of the military to file an application for conscientious objector status. In that application, they must explain in detail in an essay format what they believe about war. And they must show a few things. First of all they must show that their beliefs are sincere, that they’re not motivated by cowardice or expediency but they are based upon their conscience. Second, they have to show that their beliefs are based on the the religious grounds or deep conscientious grounds. In other words, that they are stemming from the core of their being. Third, they must show that they are opposed to all wars. You can’t pick and choose which one you’re opposed to. You can’t say, I only support just wars, that’s not good enough. You have to be opposed to all war. And then finally, you have to show that your beliefs changed sometime after you listed. The reason for this is if you enlisted and had these beliefs, then you would have fraudulently enlisted. Because they ask you about this, at least in theory, when you enlist. But after the time of enlistment, our military recognizes the fact that a person’s life can change. It could be religious conversion, it could be a dramatic experience. Many things happen in a service member’s lives. And when those things happen, if they reach a point that the service member can no longer serve without violating their conscience, that they can apply for this status.

The challenges is here is once they make the application there is a complicated and long process; interviews from a psychiatrist, interviews by a chaplain, and then in a hearing before an independent hearing officer and then it goes up the chain of command all the way up to branch level where final decision is made. It is not an easy process. It is a grueling, grueling process. That said, the process is there. The problem is, most service members do not know they have this right under the law. There’s no obligation for the military to — for commanders to inform service members of this right. Therefore, a right that you don’t know about effectively doesn’t exist. This is the logic of the Miranda decision and the Supreme Court said that the typical criminal defendant may not know they have the right to not talk to the police. In the same situation here a service member may not know they have the right to apply for this status unless this is told to them. Unfortunately that is not the case, and I think there is a very high likelihood that Sergeant Bergdahl may have struggled with issues of conscience, but did not know this process was there.

AMY GOODMAN: I wanted to go back to 2012 to the late reporter Michael Hastings who was writing for Rolling Stone about Bowe Bergdahl. He spoke on the TV network Russia Today about Bergdahl’s case..

MICHAEL HASTINGS: As to what drove Bowe Bergdahl to leave, first you have to look at, he was a 23-year-old kid who joined the Army and he expected that he was going to go over to Afghanistan and help people and be involved in this nation-building and essentially humanitarian activity. What he found when he got there was completely different. He thought he had been sold a lie. He thought that he was not being treated with respect by the superior officers. There was a serious command problem within his unit within Afghanistan. There was a serious break in command. One officer died and another got fired, three of the people he respected were kicked out. And so, that created this sort of perfect storm. You have this sort of disillusionment happening, plus all of these sort of horrible things he’s seeing with war that drove him to the decision to leave.

AMY GOODMAN: That is Michael Hastings, the Rolling Stone reporter who recently died. In his report, he talks about Bowe Bergdahl sending e-mails to his parents that suggested he’d grown disillusioned with the Afghanistan War. Bergdahl sent a final e-mail to his parents on June 27, three days before he was captured five years ago. In it he wrote, “The future is too good to waste on lies and life is way too short to care for the damnation of others as well as to spend it helping fools with their ideas that are wrong. I’ve seen their ideas, I’m ashamed to even be American. The horror of the self righteous arrogance that they thrive in. I is all revolting.” He said. He said, “I am sorry for everything here.” James Branum?

JAMES BRANUM: I think when we have to respect the profound sincerity and depth of what he is saying there. He is speaking as someone who has seen firsthand what the American imperial machine is all about. He has seen it first hand and is responding from a very core visceral place. And one can’t help but be moved by that. The challenge here was, was that there were no good options — at least that he underst — that he likely understood. Even if he had applied for conscientious objector status, that would not get him out of that deployment. He would still be there. The only thing the regulation says that would change his situation is that he wouldn’t be required to carry a gun and that he would be given duties that conflict as little as possible with his believes. The problem here in this situation is, is that when you are in a forward operating situation like this, when you’re on a deployment, not having a gun is pretty much a death sentence. You are in an incredibly vulnerable position and your entire unit is now made vulnerable by you. And so, this is is the challenge here. Even if he had exercised his rights in this situation, there were no good options. Effectively his best option may have been wait until his next leave came, go home and then apply for the status.

But, effectively, if he was struggling at that level of visceral emotion, there were no good options. I think we have to have a lot of sympathy for someone in that situation. Effectively though, if you look at it, the decision to leave and what has been alleged, that he left his unit with minimal equipment and whatnot, it certainly sounds to me like this is a guy — he was struggling. This is a guy who did not know what to do, and he made the best decision he could at the moment. I think we can’t judge that. One thing I would also say though, is in this scenario, I’ve heard variations on this over and over again, of service members who go, who join the military wanting to help people wanting to do humanitarian service. And they get there and their deployment is nothing like that at all, and it’s an incredibly difficult thing. And for many of them, they struggle. The good news is, though, for those who do — who are maybe not quite in that sever of a situation, there is hope. The G.I. Rights Hotline is one organization in particular that does a lot of work on the front lines. Obviously the military [Indiscernible] the National Lawyers Guild. These are groups that provide counsel to service members who are facing these crisis situations.

Unfortunately though, for a service member who is on deployment who may be away from the post, who’s somewhere they don’t have access to the Internet, don’t have access to the phone on a regular basis, it makes it difficult to get the help they need and that is something that we have to take into. Also, when we look at this situation, even if the allegations are true, the question is, is punishment appropriate? And I would argue it is not. Even if the military deemed him to be a deserter, this, this — Sergeant Bergdahl was imprisoned in a very difficult situation for five years. No U.S. military deserter in the current era has received more than 24 months in prison. Most, receive six months or less. Most of receive no jail time at all. Bergdahl has already effectively served more jail time than anyone ever has in the modern era, at least since gulf war one for desertion, in his time as an enemy P.O.W. So, given that, there is no reason to punish them. At worst, he should be — receive a discharge in lieu of court-martial. Personally, I believe he should receive a full honorable discharge.

AMY GOODMAN: In an astounding this morning on MSNBC’s Morning Joe the — half, if not the majority of the guests and hosts said that he should not have been saved. Given his political views.

JAMES BRANUM: That is insane. In our country we don’t sacrifice our service members based on their political beliefs. That is disgusting, personally. And in this case also, bear in mind that the situation, the prisoners that we exchanged, and again there are a lot of facts we don’t know yet, but fundamentally, the situation of the inmates at Guantánamo has been untenable for a long time. These are people who have not had their day in court, either. And so, personally, to return people who have been under the situation, even if they have done terrible things, to me, is a favorable thing to release these people anyway. And so, whatever it took to get Bergdahl home, to me, was appropriate.

AMY GOODMAN: We want to thank you very much, James Branum, for being with us. Lawyer for military deserters and conscientious objectors, legal director of the Oklahoma Center for Conscience and Action, author of, “U.S. Army AWOL Defense: A Practical Guide.” When we come back, Charles Glass joins us. He himself was held hostage for months. He is the former ABC News Chief Middle East Correspondent. His book is, “The Deserters: A Hidden History of the Second World War.” And then we will talk about Charles Tiller, five years after his murder. Stay with us.