Wednesday, September 9, 2015

Is the Army in the tank for Bowe Bergdahl?

[This slightly revised essay is being resent because a glitch in the software program prevented many subscribers from receiving it.]

In a short essay on September  8, 2015 in National Review, headlined "The Pentagon Throws the Book At Bowe Bergdahl," David French writes that "[i]t looks like the Obama administration may have traded five high-ranking Taliban prisoners for someone who was worse than a deserter." Mr. French is referring to Bergdahl having been charged with not only UCMJ Article 85 desertion, but also Article 99.

 The question arises: Why?

I have written before that the Department of the Army, Defense Department, and Commander-in-Chief cannot be trusted to seek, let alone obtain, a just result in the Bergdahl case. (If Bowe Bergdahl is a deserter, not a POW, he needn't worry, Is Bowe Bergdahl guilty of desertion?, No soldier left behind? Don't make me cry. Bergdahl Prediction, Interim Report, NO DESERTER LEFT BEHIND: Some observations about the Bowe Bergdahl case)

 Despite the universal reporting that the Article 99 charge is stiff and could send Bergdahl away for a very long time, events of the last few days further cloud what the military is up to.

Rather than rely on what TV’s talking heads and other media pundits say about those two articles, let’s see what they actually say.

Article 85 of the Uniform Code of Military Justice, "Desertion with Intent to Shirk Important or Hazardous Duty," carries a maximum potential punishment of a dishonorable discharge, reduction to the rank of E-1, total forfeiture of all pay and allowances, and maximum confinement of five years

Article 99 of the Uniform Code of Military Justice, "Misbehavior Before The Enemy by Endangering the Safety of a Command, Unit or Place," carries a maximum potential penalty of dishonorable discharge, reduction to the rank of E-1, total forfeiture of all pay and allowances, and possible confinement for life.

Under the Uniform Code of Military Justice, the specific legal elements for Article 85, "Desertion with Intent to Shirk Important or Hazardous Duty," are: (1) "The accused quit his (or her) unit or place of duty," (2) "The accused did so with the intent to avoid or shirk certain service," (3) The duty to be performed was hazardous or important," (4) "The accused knew he (or she) was required for the duty or service," and (5) "The accused remained absent until a certain date." (my emphasis.)

The text of Article 99 is as follows:

“Any member of the armed forces who before or in the presence of the enemy—

(1) runs away;

(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;

(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;

(4) casts away his arms or ammunition;

(5) is guilty of cowardly conduct;

(6) quits his place of duty to plunder or pillage;

(7) causes false alarms in any command, unit,
                or place under control of the armed forces; 

(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or

(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle; shall be punished by death or such other punishment as a court-martial may direct.”

Why, in addition to Article 85 desertion, Article 99 “Misbehavior”?

Charging Bergdahl with Article 99 and its much higher penalty gives the prosecution more leverage in obtaining a plea. Then there’s the problem of intent, usually only provable circumstantially. Article 85 expressly requires it. Article 99 does not. Indeed, intent may not be an essential element of Article 99, making conviction easier than on the Article 85 charge.

My guess is that the Army is looking for Berghdahl to cop a plea, which would bury the Bergdahl-for-Taliban affair without the fanfare and embarrassment of a court martial. Given the facts that have emerged, especially the expected testimony of Bergdahl’s fellow soldiers, there’s no way he is going to walk. He and his lawyers know that.

The only question is how severe the sentence will be. The answer will tell us whether all along the Army has been in the tank for Bowe Bergdahl.