Monday, June 2, 2014

If Bowe Bergdahl is a deserter not a POW, he needn’t worry

By Henry Mark Holzer
As the credulous are joyous over the safe return of Sgt. Bowe Berghdal after nearly five years of Haqqani captivity, and as every hour the Internet traffic swells with questions about whether Bergdahl was a deserter, sadly, if it’s the latter he probably won’t have too much to worry about.

Not only because Obama, Hagel, and others occupying dark corners of the administration now have a vested interest in Bergdahl and the POW narrative that they’ve wrapped him in, and not only because of the parades and keys to the city that will be proffered, but because the Pentagon’s track record of severely punishing desertion leaves much to be desired.

In World War II although some 21,000 military personnel received sentences of one kind or another for desertion, only 49 of them were sentenced to the death penalty. Of that group, only one was actually executed: Private Eddie Slovik.

Slovik, a juvenile delinquent who had done some jail time, was drafted in 1943 and shipped to France in mid-1944.

He deserted, was court-martialed, and sentenced to death. A clemency appeal to General Eisenhower failed, and to deter other desertions Ike allowed Slovik to be executed (the first, and last, American soldier to suffer the death penalty since the Civil War).

Bobby Garwood, about whom I wrote in my monograph Why Not Call It Treason? fared much better.

It has been said by some that Marine Private First Class Robert Garwood, who spent some fourteen years first with the Viet Cong and then with the North Vietnamese, was "the nation’s last prisoner in Vietnam." The label, however, is misleading. Calling Garwood a "prisoner" not only mischaracterizes most of his time with the Communists, but also denigrates those Americans who were bona fide prisoners of war.

We shall see if the POW label applied to Bowe Bergdhal is similarly a mischaracterization.

The Garwood story began with his driving into a nest of Viet Cong guerillas near Da Nang, South Vietnam in late September, 1965. Soon after, he was taken to the first of what would be several primitive Viet Cong prison camps in the jungles of South Vietnam.

Years later, when our prisoners of war were repatriated, those who had survived incarceration in the camps in which Garwood lived were extensively debriefed. "[T]he stories told by the prisoners to their debriefing officers [about Garwood and his conduct] were first-person observations, vehement and detailed. Many of the incidents told by different POWs dovetailed and echoed perfectly. And there was another element. The accusations of malfeasance that came out of the debriefing tapes did not all come from hard-core officers, but from foot-soldiers, a warrant officer; a doctor—from blacks, whites, from Hispanic soldiers. From Monika Schwinn, the German nurse who was unceremoniously dumped into one of the camps where Garwood was installed, came corroboration, even, from a woman. All the voices were united on one point: Garwood had chosen to give his allegiance to the enemy, and in this he was alone, separate from the other prisoners." (Groom and Spencer, Conversations with the Enemy).

In light of these debriefing reports, it was no surprise that when Garwood finally decided to repatriate himself some fourteen years after his disappearance, the Marine Corps stood him before a general court-martial.

Charged with several serious crimes—among them desertion, punishable by death—somehow Garwood’s lawyers were able to enlist the sympathy of the military judge. After lengthy pre-trial proceedings and days of actual trial, the judge—openly admitting that "I would also say that I have expressed, even publicly on occasion, that I do have a great deal of sympathy for the accused and in fact have some empathy for him"—dismissed, for want of sufficient evidence, he opined, the charges of desertion, soliciting U.S. soldiers to throw down their arms, and verbally abusing a prisoner.

That left Garwood facing two charges: collaboration with the enemy, and physical abuse of an American prisoner. It took the jury only two days to find him guilty on both.

On the collaborating charge—the principal crime based on the equivocal evidence of Garwood’s alleged "desertion," as compared with his mostly undisputed conduct in the prison camps—he was convicted of literally dozens of acts. They fell into five categories: (1) serving as an interpreter while American prisoners were being forcibly indoctrinated with Communist political propaganda; (2) informing on the prisoners; (3) interrogating the prisoners on such subjects as military matters and escape plans; (4) indoctrinating prisoners with the Communist party line, and suggesting they cross over to the Communists; (5) acting as a guard over his American countrymen to prevent escapes. On the physical abuse charge, Garwood was convicted of striking an American prisoner.

In less than an hour, the military jury imposed sentence.

Although Garwood faced life in prison for his fourteen years of egregious conduct against American prisoners of war and giving aid and comfort to our Communist enemies, his fellow Marines sentenced him to reduction in rank to private (from Private First Class!), forfeiture of all pay and allowances, and a dishonorable discharge.

Not a single day of prison time.

So Slovik, who deserted, was executed, while Garwood, who spent thirteen years collaborating with the enemy, walked.

Which brings me to a more recent case, that of Charles Robert Jenkins.

In the early morning of January 5, 1965, Sergeant Jenkins was on patrol in the Korean Demilitarized Zone—a wide buffer of land running across the entire width of the peninsula—separating North from South Korea. Telling his buddies that he was going to investigate a noise, Jenkins disappeared. The North Koreans hailed him as a defector, a characterization consistent with what Jenkins had apparently written to his family.

In 1982, Jenkins appeared in a North Korean propaganda film. According to his relatives, he taught English at a Communist school.

Some 40 years after his desertion, Jenkins, his Japanese wife (who years earlier had been kidnapped by the North Koreans) and two daughters surfaced in Indonesia, which has no extradition treaty with the United States. From there Jenkins and his family traveled to Japan, where the government interceded with the United States on the deserter’s behalf, requesting a pardon because he had married a Japanese woman in North Korea.

From the beginning, our government talked tough. Jenkins was an army deserter. We wanted him back. No deals would be made. Etc., etc., etc. Not having been discharged from the United States Army, a court-martial still had jurisdiction over Jenkins. Yes, sir!

Soon after his arrival in Japan, Jenkins, then in his mid-sixties and ailing, allegedly expressed a need to clear his conscience. Accordingly, on September 11 (!), 2004, he reported to Camp Zama, northwest of Yokohama, smartly saluting to the Military Police.

In writing an essay about Jenkins at that time, I raised the question of what ought to be done with him. I wrote the following:

Clearly, he will not suffer Eddie Slovik’s fate. But, like Garwood, he may escape meaningful punishment. There have been reports that Jenkins may be able to make a plea deal in return for providing information about North Korea. If such a deal materializes, it would be a fig leaf for the army’s unwillingness to court-martial Jenkins. Even if the aging deserter . . . had useful intelligence information—which is highly unlikely, given the nature of his work in North Korea—it would be wrong for the army to ignore Jenkins’ nearly forty-year residence in that country.

The army is duty bound to court-martial Jenkins in a forum where he can present any defense he may have—including the argument that, instead of having deserted, he was kidnapped. If army lawyers cannot prove their case beyond a reasonable doubt, Jenkins goes free, and would probably receive substantial back pay. If, however, prosecutors can prove that Jenkins deserted from the front line facing Communist North Korea, he should be punished by the same court-martial panel that convicts him.

The nature of that punishment is less important than that it be imposed. The time for mercy, if Jenkins deserves any, is after conviction, not in the decision to prosecute or not.

Beginning with the Korean War, there have been too many examples of military leniency. Scores of soldiers who collaborated in Chinese prison camps were never prosecuted, and those who were convicted served little time. In Vietnam, countless incidents of insubordination and even assaults on superior officers went unpunished. A small group of collaborators in the infamous Hanoi Hilton, dubbed the "Peace Committee," were never even charged, let alone punished. More recently, the abuse of Iraqi captives in the Abu Ghraib prison led to charges—but only after the abuse became a public scandal.

It is clear that, too often, the armed services are not only unwilling to wash their dirty laundry in public, but unwilling to wash it at all. (Witness the Navy’s recent refusal to investigate challenges raised about the legitimacy of John Kerry’s medals.)

Let us hope that in the Jenkins case, the United States Army reverses this unfortunate trend.

Jenkins was court-martialed.

He received a four-decade-overdue dishonorable discharge.

And 30-days confinement!