With talk of U.S. military officials beginning an investigation of the circumstances surrounding the capture of Sgt. Bowe Bergdahl by Taliban members, a legal course of action is unclear.
If Bergdahl did surrender of his own free will, for whatever the reason, Joseph Cerami, former Army colonel and professor of national security, said he would have violated the U.S. Code of Conduct. But this code of conduct is only a professional standard and it’s not punishable under Uniform Code of Military Justice. Desertion and being absent without official leave, on the other hand, are covered under rules in the Uniform Code of Military Justice, Cerami said.
Cerami said the prospect of Bergdahl facing trial will depend on interviews with investigators.
Like a grand jury, Cerami said military officials will conduct interviews with Bergdahl as well as individuals in his unit, but proving Bergdahl’s intent will be difficult.
“It depends on what he was doing,” Cerami said. “Was he absenting himself from his duty station because he had to get away, because he was having a hard time with his other sergeants and his officers or he didn’t agree with the mission and he just felt like he needed to get away for a couple of days? In that case, he would probably get charged with absence without official leave. It would be different if he said, ‘no I left. I deserted my unit, I was going to join the Taliban and become a Jihadi fighter.’”
If the latter is the case, Cerami said a whole series of charges could be brought against Bergdahl. From there, if Bergdahl were to throw himself at the mercy of the court, procedures would be short. If not, the procedures could drag on for years, Cerami said.
“If he’s found to be psychologically unbalanced, then that’s a whole different story,” Cerami said. “Then the Army is going to have to be accountable for explaining why someone who was discharged for psychological problems was allowed to enlist in that army.”
Cerami said that such a suggestion is purely speculation, but the fact that Bergdahl was psychologically evaluated after leaving the Coast guard raises a red flag, and if his legal counsel advises Bergdahl to say he had psychological problems, prosecutors would be hard pressed to charge him when someone in such a mental state was allowed to enlist.
There is no way of knowing when any trajectories would play out, said Richard Namee, professor of international affairs specializing in government intelligence operations, terrorism and counterinsurgency at the Bush School of Government and Public Service. While Bergdahl will undergo intensive psychological help, every human is different in his or her response to war imprisonment, said Namee.
“It could take three months, six months, but clearly, we couldn’t put someone through a military process of adjudication if they are still suffering from the effect of imprisonment,” Namee said.
Additionally, given the nature of Bergdahl’s imprisonment, an adjusted form of punishment may be doled out if Bergdahl is charged.
Reflecting the sweeping media coverage of the issue, Namee said Americans need to let the military process handle the situation as much as it can and focus instead on what’s happening with the ISIS in Iraq today.
For Cerami, Bergdahl is but one of many lives in a bigger scenario.
”My swan song has been that we really need to be concerned about all of the lives at stake in this, and I think Bergdahl’s life is important and deserves human security and dignity,” Cerami said. “We have to think also about the wider context and how many hundreds of thousands now Syrians have been killed now, women, children, aid workers — how many have died and are going to die in Iraq in the next several months, so all of that matters as well. We can’t elevate the saving of one American soldier in comparison to all of that, there are a lot of people out there who are dying and suffering in the Middle East.”
Cerami said the War on Terrorism is constant and that American public needs to understand the stakes.