Freed POW’s legal status is murky
Some call for Bergdahl’s court-martial for desertion
By Andrew Tilghman Jun. 2, 2014
Does Army Sgt. Bowe Bergdahl need a lawyer?
That may seem like a highly unusual question to ask about a prisoner of war freed after five years in captivity.
But Bergdahl’s mysterious disappearance in 2009 also was highly unusual. Many of his fellow soldiers believe Bergdahl intentionally abandoned his unit’s forward operating base in eastern Afghanistan’s volatile Paktika province because he had become disillusioned with the war effort, prompting a search-and-rescue mission that put thousands of troops at risk.
“Clearly he’s suspected of an offense, and that is desertion,” said Eugene Fidell, a military law expert who teaches at Yale Law School.
“So if they are interrogating him, they have to give him warnings. That includes notice of his right to counsel, which he can waive, but they have to give him the warning,” Fidell said in an interview Monday.
Bergdahl was released by his Taliban captors on Saturday and is currently in Germany, hospitalized at Landstuhl Regional Medical Center, in part due to concerns that he was poorly fed and may have “nutritional issues,” a defense official said. Bergdahl has not yet spoken to his family.
Pentagon officials have not ruled out a prosecution under the Uniform Code of Military Justice. The Army ultimately will make that call, Army Col. Steve Warren, a Pentagon spokesman, said Monday.
“Our focus right now is to get Sgt. Bergdahl stabilized and brought through the three phases of reintegration and reunited with his family,” Warren said. “There is plenty of time in the future for looking into the circumstances surrounding his disappearance and to make decisions on the way forward.”
From a hospital bed in Germany, Bergdahl is facing some forms of interrogation from Army psychologists and others who are part of an “interdisciplinary team,” Warren said.
Those interrogators are seeking bits of intelligence about the Taliban that could help with current operations and details about Bergdahl’s captivity that could help refine U.S. military training programs, Warren said.
Eventually, interrogators will ask Bergdahl about precisely what happened the night he disappeared from his FOB. The Pentagon has never formally completed an investigation into incident.
“There have been several looks into the circumstances surrounding his disappearance but we’ve never publicly said anything, primarily because we haven’t had a chance to speak to Sgt. Bergdahl himself,” Warren said.
When asked whether Bergdahl has an attorney, Warren said: “Not to my knowledge.”
“I’m not going to speculate on whether he needs a lawyer. Let’s just get him back,” he added.
Almost immediately after Bergdahl’s return to U.S. military custody Saturday, a small but vocal group of service members and veterans sought to puncture the public image of a war hero returning home.
“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,” wrote Nathan Bradley Bethea, a former junior officer who deployed with Bergdahl and the 1st Battalion, 501st Infantry Regiment.
In an article published online by the Daily Beast, Bethea cited six specific soldiers from his unit who died in operations linked to those search-and-rescue operations following Bergdahl’s disappearance.
By Monday afternoon, nearly 4,000 people had signed an online White House petition urging President Obama to court-martial Bergdahl.
Prosecuting freed prisoners of war is not unheard of. In 2004, the Army court-martialed a deserter from the Vietnam era, Charles Robert Jenkins, who left his unit in Korea in 1965 in part due to fears about deploying to Vietnam.
Jenkins was captured by the North Koreans and spent decades as a prisoner of war before his release in 2002. The Army subsequently sentenced him to 30 days’ confinement.
Under the UCMJ, desertion is punishable by the death penalty. A lesser charge for similar conduct is being absent without leave, or AWOL.
Yet many legal experts say a prosecution for Bergdahl is unlikely. There is an “unwritten policy” to avoid court-martialing service members who have spent time as POWs, Fidell said.
“I don’t think they’ll do that in this case,” Fidell said. “Unless something comes to light that suggests that he was a turncoat or joined the other side or assisted the other side in some way. … There is no public indication that any of those things are true in his case.”
Greg Rinckey, a former Army judge advocate who practices at the New York law firm Tully Rinckey, agreed.
“There’s going to be an investigation, I’m sure, but do I expect to see a court-martial? No,” Rinckey said in an interview.
A prosecution would be especially difficult because Bergdahl could raise questions about his mental health when he disappeared or as a result of his captivity, Rinckey said.
Rinckey speculated the military could subject Bergdahl to an administrative discharge if he did something wrong, or a medical separation or retirement, if his mental state warrants.
In that event, he could be entitled to disability benefits from the Army and the Veterans Affairs Department.
Already, Bergdahl appears to be entitled to back pay and benefits for his time in captivity, Rinckey said.
“The law is while you’re a prisoner of war, you receive your pay and benefits, or your family will receive it, and you will receive your [scheduled] promotions,” he said