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Mar 26, 2015 4:44 AM

Desertion charge intensifies debate over Bergdahl's release

The Associated Press

FORT BRAGG, N.C. (AP) Charges that Army Sgt. Bowe Bergdahl deserted and endangered his post in Afghanistan intensify the debate over his politically wrought release: Should he spend years in prison as punishment for endangering soldiers who risked their lives to find him?

Or was five years as a Taliban captive, where he was so isolated officials suggested it had affected his ability to speak English upon his return to the U.S., punishment enough?

Bergdahl, 28, won't face a death sentence, although the punishment is an option for prosecutors to pursue against deserters in wartime. But his case does raise the question of whether military prosecutors will lock away for life a man the U.S. gave up five imprisoned Taliban commanders to bring home.

A death penalty case was likely a non-starter after all that had to be sacrificed to bring him home, said Jeffrey K. Walker, a St. John's University law professor, retired Air Force officer and former military lawyer. In fact, his defense attorney might successfully argue he deserves leniency after years as a prisoner.

"That's pretty good mitigation evidence," Walker said. "It wouldn't surprise me at all if what he ended up with was a dishonorable discharge and no jail time."

Bergdahl's "reintegration" when he returned to Fort Sam Houston in Texas suggests how difficult his life was in captivity. He was on a bland diet at first and did not initially have access to a television. He was gradually allowed to venture off the base to go to grocery stores, restaurants and shopping centers. He even had to readjust to the idea that he could control aspects of his life as simple as choosing when to eat, and what.

However, the charges underscore the military's position that the hardship of his captivity doesn't outweigh the ramifications of leaving his post.

Some members of his former unit have called for serious punishment, saying others risked their lives searching for him.

"The military's obviously a very rough job. ... But everybody else stayed with the oath and did what they signed up to do. And as a result of that, some didn't get to come home," said Cody Full, 26, who served in Bergdahl's platoon. He said Bergdahl should be stripped of his pay and benefits and be dishonorably discharged.

Michael Waddington, a military defense lawyer not involved with Bergdahl's case, said he expected a long prison sentence and wondered why the U.S. bothered to bring him back.

"The administration traded a known Taliban for this guy only to bring him back and put him in jail," Waddington said. "That seems to me like a waste of resources."

Bergdahl, 28, was captured by the Taliban after leaving his post in June 2009 and held by members of the Haqqani network, an insurgent group tied to the Taliban that operates both in Pakistan and Afghanistan. Before disappearing, Bergdahl had expressed misgivings about the U.S. role in the war as well as his own.

Last May 31, Bergdahl was handed over to U.S. special forces in Afghanistan as part of an exchange for five Taliban commanders who were imprisoned at Guantanamo Bay, Cuba.

The exchange set off a debate over whether the U.S. should have released the five Taliban members. Little is known about what the five have been doing in Qatar, where they are being monitored by the government. Some lawmakers have predicted that the five would return to the battlefield.

Wednesday's announcement brought further criticism of the exchange from some lawmakers, including U.S. Rep. Michael McCaul, R-Texas and the chairman of the Committee on Homeland Security.

"President Obama endangered our national security and broke the law when he chose to negotiate with terrorists and release hardened enemy combatants from Guantanamo Bay in exchange for Sgt. Bergdahl who many believed at the time was a deserter," McCaul said in a statement.

The Obama administration appeared to stand by the swap.

"Was it worth it? Absolutely. We have a commitment to our men and women serving overseas, or in our military, defending our national security every day, that we will do everything we can to bring them home, and that's what we did in this case," State Department spokeswoman Jen Psaki said in an interview on Fox News.

Bergdahl was charged with desertion and misbehavior before the enemy; the first carries up to five years in prison, the latter up to life. A conviction on either could strip him of his rank and all pay and earn him a dishonorable discharge.

The misbehavior charge is rare and typically reserved for shameful or cowardly conduct, said Daniel Conway, a military defense lawyer and the author of a forthcoming book on military crimes.

In an interview Wednesday with MSNBC, Bergdahl's attorney, Eugene Fidell, claimed the major general who conducted an investigation of the case before the charges were brought "never mentioned" the misbehavior charge "and I don't think he had it in mind, and I don't frankly know how it got on the charge sheet."

"This is a matter that I anticipate we'll contest," he said.

Fidell said the desertion charge and the misbehavior charge "are simply two ways of describing the same conduct, and I think it's unfortunate that someone got creative in drafting the charge sheet and figured out two ways to charge the same thing."

Conway said he wouldn't expect the Army to seek much prison time for Bergdahl because of his time as a Taliban captive, but officials needed to prosecute the case because a conviction means Bergdahl cannot collect special compensation as a prisoner of war.

"He did spend X number of years as a prisoner of the Taliban that certainly mitigates the need for him to be locked up," Conway said. "But as a political matter, I don't think we can stomach the possibility that he deserted his post and could receive $300,000 in back pay for it."


Baldor reported from Washington. Associated Press writers Donna Cassata, Erica Werner, Deb Riechmann and Sagar Meghani in Washington; Emery P. Dalesio in Raleigh; and Gene Johnson in Seattle contributed to this report.


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