COMMENTARY: Military to thoroughly vet plight of Bergdahl

Last summer, this writer made a presentation to his college classmates regarding national defense policy and spending. It will not surprise that one of the questions was about Sgt. Bowe Bergdahl, U.S. Army. What to say?

One thing I said was that I have great faith in the Army’s investigation system and that, less some political pressure to the contrary, the senior officers responsible would make a good judgment on what to do next.

So, now, we have the results of the investigation. A major general (pretty high-ranker for a mere private first class) concludes Bergdahl should be prosecuted. The four-star general, the commander of all U.S. Army forces in the continental United States, agrees. The charges are both desertion, which was expected, but also “misbehavior before the enemy.” Thus, although “desertion” theoretically carries the death penalty, the misbehavior count may effectively be worse because it can result in life in prison.

Reid Beveridge

What is indisputable is that other soldiers in Bergdahl’s unit assert that he left his post in southeast Afghanistan one night. He was captured by the Taliban a couple of days later. This is the statement of Bergdahl’s company commander, a captain, and his squad leader, a staff sergeant. Company commanders and squad leaders are credible. In addition, others in Bergdahl’s platoon say something similar. And further yet, that he walked off his post at least once earlier.

That a soldier, any soldier, would walk off into the boonies in southeastern Afghanistan defies rational understanding. It is almost suicidal, for one thing. Even if he hadn’t been picked up by the Taliban, he would have starved or died some other way before too long in this environment.

With charges filed, the next stop is a general court martial under the Uniform Code of Military Justice — the UCMJ. This is a criminal code familiar to all military personnel since its basic elements are taught as early as enlisted basic training and at entry-level officer training. Among other things, young privates are told that if they leave their post or depart their training base, they will be pursued, arrested and prosecuted.

If they are gone a short time, this is called AWOL — absent without leave. If longer, as in this case, it is called desertion. Even absent the death penalty, desertion in wartime means what is known in the military as the “long tour” at Fort Leavenworth. This is the military prison at that Kansas post where members of all services serve prison time. It is where, for example, Pvt. Bradley/Chelsea Manning is serving his/her term. It also is where Maj. Nidal Hassan, the Fort Hood shooter, is incarcerated.

A general court martial is not quite like any trial you have ever seen in civilian courts, much less Court TV. There is a military judge who is a full colonel. This is what he does for a living. There also is a jury, usually of five senior officers or noncommissioned officers (in this case) (or more in a capital case). The NCO will be a command sergeant major, the highest enlisted rank. These men and women rarely think leaving one’s post is very funny.

The officers will be of various ranks from lieutenant to colonel. The jury “president,” in this case, is likely to be a full colonel. Maybe even a brigadier general. Bergdahl will have a military lawyer, what we call a “JAG” for Judge Advocate General Corps. He may also hire a civilian lawyer, and he has.

There is no jury-selection process akin to civilian courts. The relevant commanding general assigns officers and NCOs to the jury pool. The lawyers have one peremptory challenge, only one. The judge can dismiss others at his/her discretion.

The same “beyond a reasonable doubt” standard pertains. However, unlike civilian trials, members of the jury panel are allowed to question the witnesses. Jury deliberations are like civilian trials except that all the panel members are military professionals, probably career military. They rarely get emotionally involved in the testimony, and they’re usually pretty adamant about military standards. As noted above, they will take seriously what the company commander and squad leader say.

Similarly, though, they also will quickly divine shaky testimony. This is what caused the case against Brig. Gen. Jeffrey Sinclair at Fort Bragg last year to fall apart. The prosecutors decided the captain who had brought the accusations wouldn’t be a credible witness in front of five Army generals (all panel members must be equal or superior in rank to the defendant).

Some on the progressive side of the ledger now are trying to make Bergdahl into a victim, or even a hero. One correspondent even suggested we give him a medal for deserting the nation’s fight against terrorism. Such arguments may work in some elements of the court of public opinion. But they are unlikely to matter much to a panel of Army officers.

Finally, no matter what some historical liberals think of it, military justice is about good order and discipline in the ranks. Charges like walking off one’s post or sexual harassment are contrary to good order and discipline. They cannot be tolerated because, particularly in a combat zone, they get people killed.

Editor’s note: Reid K. Beveridge is a retired Army and Delaware National Guard brigadier general and resides at Broadkill Beach. He can be contacted at Beveridgere@prodigy.net.