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The Bergdahl Case Gets Curiouser and Curiouser
The odd case of Army deserter Bowe Bergdahl got even weirder during his Article 32 hearing conducted by Army officials Thursday and Friday last week. The Article 32 procedure is the military equivalent of a civilian grand jury, except that the accused has quite a few more rights. Unlike a typical grand jury, the Article 32 is presented before a single hearing officer, not held in secret, allows defense counsel to be present and to cross-examine witnesses, and to call their own. All of this occurred at Bergdahl’s hearing.Bergdahl’s attorneys, led by the experienced civilian defense lawyer, Eugene Fidell, managed to present this account to the Article 32 hearing officer without calling their client to the stand and subjecting him to cross-examination. Instead, they called General Dahl who repeated Bergdahl’s account, and added for good measure that he did not believe Bergdahl deserved to be imprisoned for his offenses. They also presented witnesses that testified as to Bergdahl’s mistreatment by the Taliban, his suffering at their hands, and the permanent mental and physical injuries he sustained as a result. Overall, it appears that Fidell and his team of Army defense lawyers damaged the prosecution and laid the groundwork for a recommendation of leniency by the Article 32 hearing officer. The defense position is that Bergdahl left his post, but did not desert, since he was on he was on his way to another Army post, and planned to report there. Thus, at most according to the defense, he is guilty of AWOL, a much less severe offense than desertion and misbehavior before the enemy. It is not clear that the prosecution made a compelling case otherwise. The hearing officer’s recommendation is not binding on the convening officer, General Robert Abrams, but carries great weight. All this was clever lawyering by Bergdahl’s legal team. Presumably they allowed Bergdahl to convey his story to Dahl back in 2014 calculating that if Dahl bought it, he might recommend not going forward with the prosecution. That Fidell has been calling for the Army to release Dahl’s investigative report, suggests that the general either made such a recommendation, or was extremely ambivalent about going forward. Even if, as was the case, the Army did move to prosecute, Fidell figured on calling Dahl to the stand as a way of having Bergdahl in effect “testify” without risking a damaging cross-examination. All of this raises the question of whether or not anything Bergdahl told Dahl was in fact true. Unless Bergdahl is exposed to cross-examination, and perhaps even then, it might be pretty hard for the Army to rebut his account. But even if it is true, the Army should not accept that desertion (or leaving one’s combat post) by soldiers who disagree with their “incompetent” commanders is a minor offense. Anyone who has been in any army knows that many, if not most soldiers at any given time believe their officers and NCOs to be incompetent fools. Not infrequently, this is true, as it has been throughout history. However, all militaries count on these “fools” to run the show, there being nobody else to do so. Were the Army to cut Bergdahl a break because he was also a fool to have left his post, it would be tantamount to sanctioning such action in the future, which undermines the very essence of military discipline. Lastly, is the uncomfortable but compelling suspicion that this entire fiasco is a setup that will allow the Army to escape the Bergdahl case without embarrassing President Obama, who not only traded the Taliban terrorists for the soldier, but feted his family and proclaimed him a hero. Watching relatively inexperienced Army prosecutors blow a case against accomplished civilian defense lawyers is not entirely unusual. But it is also possible that the Army deliberately made it easy on Fidell and his team, and seeing a shadow boxing loss at the Article 32 as a political win. Article 32 hearings are a good way for the military to dispose of cases that they don’t like, since they give the appearance of having brought the manner to a mini-trial and are comparatively fair compared to civilian grand juries. At least as reported, Bergdahl’s Article 32 doesn’t appear to have made a good case against him for anything more than an AWOL charge, which I think would suit the Army just fine. It would allow the Army to dispose of the case through something less than a General Courts Martial, preserve Bergdahl’s veteran benefits for his apparent physical and psychological disabilities, and not extend the matter into the election year, embarrassing Obama and his increasingly likely successor as Democrat nominee, Vice-President Biden. Call me cynical, but I think that is where we are headed. Posted by: Pappy 2015-09-22 |
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