Bergdahl Verdict Will Be White House’s Next Political Headache

The Army is weighing whether to charge former prisoner of war Bowe Bergdahl with desertion, a lesser crime, or nothing at all, a decision that is likely to spark a new political firestorm over the Obama administration’s decision to release five Taliban prisoners to win his release.

The Bergdahl controversy, which had largely disappeared from public view for months, came roaring back this week after Fox News reported that his attorney has received a “charge sheet” from the Army calling Bergdahl a deserter. NBC News followed up with a report saying that Bergdahl will “likely be charged with desertion.” The Defense Department adamantly denied the reports, calling them “patently false” and said the Army hasn’t decided whether to charge Bergdahl with a crime. Foreign Policy has confirmed that no such charge sheet exists.

If Bergdahl is charged with desertion, Republican critics will likely chastise the White House for portraying the young soldier as a hero when he returned home in June, and the Taliban prisoner swap that secured his freedom could face new scrutiny. As part of the deal, the White House agreed to release five detainees — described as mid- to high-level officials in the Taliban — being held at Guantánamo Bay, and transferred them to Qatar.

If the Army decides a full-blown court martial isn’t necessary and instead disposes of the case with administrative actions, ranging from loss of pay to demotion to a punitive discharge — something it does in the majority of AWOL and desertion cases — Republican critics appear ready to declare the process vulnerable to political influence. Already, there are unfounded charges that the White House is slow-rolling the Army’s decision or somehow meddling in it, an accusation the Pentagon flatly denies.

In 2009, Bergdahl left his remote military outpost in Afghanistan in the middle of the night and was quickly captured by Taliban forces. After nearly five years in captivity, a U.S. Special Forces team in Afghanistan recovered him on May 31, 2014, as part of a deal in which the United States released five Taliban officials.

The prisoner exchange sparked a furor among Republicans, who questioned the wisdom of such a trade and accused the White House of not consulting Congress before carrying it out. The Government Accountability Office concluded in an August 2014 report that Barack Obama’s administration broke the law by transferring the detainees without informing Congress, as required by the Defense Appropriations Act. The White House’s lionization of Bergdahl was also criticized, with Susan Rice, the president’s national security advisor, getting the brunt of the attacks for saying Bergdahl served with “honor and distinction.”

His return home also provided veterans — including men in Bergdahl’s unit — with the opportunity to voice their anger that fellow soldiers were put in harm’s way to try to save a soldier who decided to walk away. Republican strategists arranged some of their interviews with the media.

After this initial outcry, the case slipped out of the headlines, as Bergdahl tried to readjust to life back home. He remains in the Army, but out of the spotlight, serving in an administrative job at Joint Base San Antonio-Fort Sam Houston.

That changed this week after the initial — and apparently erroneous — Fox News and NBC News reports. Bergdahl’s return to the headlines has put the prisoner swap back in Republicans’ cross-hairs and has shown that no matter how this plays out, desertion charge or not, Obama’s critics will cry foul.

“I would not have transferred the five for a Medal of Honor winner,” Sen. Lindsey Graham (R-S.C.) told FP on Wednesday, Jan. 28, referring to the military’s highest commendation for battlefield bravery and sacrifice. “The swap was bad on its face, not by what [Bergdahl] may or may not have done. It was too many high-value people to release.”

Still, Graham, a colonel in the U.S. Air Force Reserve assigned as a senior instructor at the Air Force’s Judge Advocate General’s School, stressed that Bergdahl should be presumed innocent even if he is charged.

“I’m not going down the road of demeaning the young man,” Graham said.

Sen. John McCain, the Republican chair of the Senate Armed Services Committee, said it’s about time his panel is briefed on the case, but he hesitated to jump to any conclusions until more is known about the Army’s determination. McCain, a prisoner of war during the Vietnam War, has gone back and forth with his support for the prisoner swap, claiming he didn’t know the identities of the Taliban prisoners when he said he supported it. He has since become one of its fiercest critics.

Some responses to the week’s news were less measured. Reports surfaced this week that the White House was meddling in the process, trying to protect Bergdahl from a desertion charge in a move to save face. There were also accusations that the Obama administration was trying to delay a decision on Bergdahl’s fate to put more time between his celebrated return home and day of judgment.

Meanwhile, the Army says the process has been fair from the very start and that it’s crucial to the service that it remains that way.

After Bergdahl walked off his post and was captured, U.S. Central Command, which oversees operations in Iraq and Afghanistan, opened up what it calls a 15-6 investigation into the circumstances of his disappearance. Of course, this review did not have the benefit of talking to Bergdahl about why he left.

When Bergdahl was returned home last summer, the Army quickly launched a second investigation, which was led by Maj. Gen. Kenneth Dahl, who served tours in Iraq and Afghanistan. He had an initial 60 days to complete his report, but requested an additional 45 days, an extension he only partially used.

After Dahl’s investigation was complete, Lt. Gen. William Grisoli, the director of the Army staff, ordered Gen. Mark Milley, head of Army Forces Command, to review the investigation and determine what charges, if any, Bergdahl should face. In military-justice lingo, Milley is the general court-martial convening authority, and it’s up to him to decide how to move forward with the case.* His options include doing nothing to ordering nonjudicial punishment to deciding whether a court-martial is necessary. Even if Bergdahl is charged with desertion, few expect him to face prison time; instead the Army would likely credit Bergdahl for the nearly five years he spent in captivity in Afghanistan.

Milley has not yet made a decision on what charges, if any, Bergdahl should face, Pentagon press secretary Rear Adm. John Kirby told reporters this week. There is no timeline for Milley to make that decision, Kirby added.

Kirby emphasized that Army Secretary John McHugh and Defense Secretary Chuck Hagel were provided an informational briefing on the investigation’s findings, but have no say in its eventual outcome.

An Army spokesman told FP that the process is protected from outside meddling and that accusations that the White House or a defense official is able to influence Milley’s decision are unfounded.

This would represent undue command influence and would jeopardize the case, the Army spokesman said.

The difference between AWOL and desertion, both considered crimes in the military, depends entirely on the intent of the soldier at the time he leaves.

To charge Bergdahl with desertion, the Army has to prove he intended to stay away from the U.S. military permanently. In Bergdahl’s case, proving intent is complicated by the fact that Bergdahl was captured within days of his disappearance. How long did he intend to stay away? That’s a difficult question for anyone other than Bergdahl to answer.

While critics of the Obama administration will likely use the Bergdahl decision as ammunition in their ongoing attacks on the White House, even its strongest opponents won’t argue that Bergdahl, an American soldier, should have been left in the Taliban’s hands.

“You had to bring him back. No matter what an American in uniform does, you have to bring him back,” said Joe Kasper, a spokesman for Duncan Hunter, a Republican congressman from California who served on active duty in the Marine Corps. Hunter has asserted that there were other options on the table that should have been used instead of the prisoner swap to secure Bergdahl’s release.

*Correction, Jan. 30, 2015: Gen. Mark Milley will decide how to move forward with Bowe Bergdahl’s case. An earlier version of this article said he would make recommendations about how to move forward. (Return to reading.)

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