Bowe Bergdahl’s Legal Limbo

An American soldier was held in Afghanistan for five years. The Army will finally be deciding whether he was a POW -- or a deserter.

Bergdahl Being Treated At U.S. Military Hospital In Germany
UNDATED - In this undated image provided by the U.S. Army, Sgt. Bowe Bergdahl poses in front of an American flag. U.S. officials say Bergdahl, the only American soldier held prisoner in Afghanistan, was exchanged for five Taliban commanders being held at Guantanamo Bay, Cuba, according to published reports. Bergdahl is in stable condition at a Berlin hospital, according to the reports. (Photo by U.S. Army via Getty Images)

The American soldier who was held by the Taliban for five years now finds himself in a new kind of confinement: a legal limbo that will only end when the U.S. Army decides whether to charge him with deserting his post or let him leave the military without massive penalties.

The decision, which could come at any time, holds wide-ranging consequences for Sgt. Bowe Bergdahl, who has been at the center of a fierce debate inside and outside of the military since disappearing from his base in eastern Afghanistan in June 2009. Bergdahl wound up in the hands of the Haqqani network, a feared group of militants, but it remains unclear how he was captured by their fighters and whether — as some of his fellow soldiers believe — he walked off of his base willingly.

Originally, Bergdahl’s Army contract was scheduled to end during his time in captivity. But he wasn’t freed until last May, as part of a controversial prisoner swap for five Taliban detainees at Guantánamo Bay. The Army investigation into the exact circumstances of his capture wrapped up in December, when the still-secret findings were handed over to the commander charged with making a final recommendation about Bergdahl’s case.

Today, the soldier, who turns 29 later this month, remains on active duty, and has quietly been working in an administrative job at Fort Sam Houston in San Antonio, Texas. But legal experts say it’s unclear how much longer the Army can retain Bergdahl in the military while top brass decides what to do.

“The clock is ticking now that the investigation is done,” said Chris Jenks, an assistant professor of law at Southern Methodist University’s Dedman School of Law.

“The longer it goes on, the more it would seem that the Army is looking to charge him,” Jenks said. “Because otherwise, he should be out now and the Army would be taking steps to discharge him.”

At a breakfast last month with reporters in Washington, Army Secretary John McHugh said he expected a decision in the “relatively near future.”

In the meantime, the Army is relying on a provision in its regulations that allows it to hold a soldier whose contract has expired while it completes an investigation that potentially could go to trial by court-martial. Under its own rules, once that investigation is complete, the Army either needs to charge Bergdahl with a crime or release him.

The Army maintains that the investigation is still open, and will remain so until Gen. Mark Milley, the general overseeing the case, decides how to move forward. That could include recommending criminal charges for Bergdahl, declaring his service obligation complete, or deciding on something in between the two extremes.

The Army is taking its time due to “the complexity of the case coupled with the fact that we have the future of a soldier in our hands,” McHugh told reporters last month. “We want to be fair, we want to protect that soldier’s rights, and come out to the proper conclusion.”

McHugh, a political appointee, said he does not have a role in weighing Bergdahl’s case. That falls entirely to Milley, with whom McHugh said he hasn’t spoken since the four-star general was assigned the case, to remove any perception of undue command influence.

But the more time that goes by, the more pressure the Army is under to reach a decision.

“It’s astonishing that we’re now approaching a year,” said Zachary Spilman, a civilian defense attorney and lead author of the military justice blog CAAFlog. “The Army is very clearly moving very slowly and trying to make sure that whatever it does is right.”

The financial stakes for Bergdahl are huge. If he is honorably discharged from the Army, he would receive back pay for his time in captivity and have access to education grants and health benefits from the Veterans Affairs Department.

A second option would be for the Army to issue a “general” discharge of Bergdahl, which would release him from service with full benefits. But it could raise red flags with future employers as to why he was not honorably discharged from the Army.

The third — and harshest — approach would be for the Army to initiate court-martial proceedings against Bergdahl. That could result in a trial or a potential plea deal in which Army commanders could forgo a trial and let him leave the military with an “other than honorable discharge,” under which Bergdahl would not have access to VA benefits or other benefits like disability compensation or access to the GI Bill.

It’s also possible the Army will decide that Bergdahl has what’s called “time lost” on his contract — periods during which he didn’t fulfill the obligations of his service and therefore still owes the Army. Under Army rules, time lost can result from desertion, among other reasons.

This gets to the heart of Bergdahl’s case. Why did he wander off his base in Afghanistan that fateful night in June 2009? Was he deserting the Army, intending never to return? Or was something else going on? Should he be given POW status, a designation that earns a host of lifelong benefits, for his five years in captivity? In essence, was his time in captivity “good time,” meaning it should count toward his contract? Or was it “bad time,” in which case Bergdahl still owes the Army?

Almost a year after Bergdahl’s return to the United States, the Army is still trying to answer these questions.

U.S. Army via Getty Images

Kate Brannen is deputy managing editor at Just Security and a contributor to Foreign Policy, where she previously worked as a senior reporter. Twitter: @K8brannen

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