Military prosecutors have reached into a section of military law
seldom used since World War II in the politically fraught case against
Army Sgt. Bowe Bergdahl, the soldier held prisoner for years by the
Taliban after leaving his post in Afghanistan.
Observers wondered
for months if Bergdahl would be charged with desertion after the deal
brokered by the U.S. to bring him home. He was — but he was also charged
with misbehavior before the enemy, a much rarer offense that carries a
stiffer potential penalty in this case.
"I've never seen it
charged," Walter Huffman, a retired major general who served as the
Army's top lawyer, said of the misbehavior charge. "It's not something
you find in common everyday practice in the military."
"I've never seen it charged."
- Walter Huffman, a retired major general
Bergdahl could face a life sentence if convicted of the
charge, which accuses him of endangering fellow soldiers when he "left
without authority; and wrongfully caused search and recovery
operations."
Huffman and others say the misbehavior charge allows
authorities to allege that Bergdahl not only left his unit with one less
soldier, but that his deliberate action put soldiers who searched for
him in harm's way. The Pentagon has said there is no evidence anyone
died searching for Bergdahl.
"You're able to say that what he did
had a particular impact or put particular people at risk. It is less
generic than just quitting," said Lawrence Morris, a retired Army
colonel who served as the branch's top prosecutor and top public
defender.
The Obama administration has been criticized both for
agreeing to release five Taliban operatives from the Guantanamo Bay
prison and for heralding Bergdahl's return to the U.S. with an
announcement in the White House Rose Garden. The administration stood by
the way it secured his release even after the charges were announced.
The
military has scheduled an initial court appearance known as an Article
32 hearing for Bergdahl on Sept. 17 at Fort Sam Houston, Texas. The
proceeding is similar to a civilian grand jury, and afterward the case
could be referred to a court-martial and go to trial.
Misbehavior
before the enemy was used hundreds of times during World War II, but
scholars say its use appears to have dwindled in conflicts since then.
Misbehavior before the enemy cases were tried at least 494 times for
soldiers in Europe between 1942 and 1945, according to a Military Law
Review article.
Legal databases and media accounts turn up only a
few misbehavior cases since 2001 when fighting began in Afghanistan,
followed by Iraq less than two years later. By contrast, statistics show
the U.S. Army prosecuted about 1,900 desertion cases between 2001 and
the end of 2014.
The misbehavior charge is included in Article 99
of the military justice code, which is best known for its use to
prosecute cases of cowardice. However, Article 99 encompasses nine
different offenses including several not necessarily motivated by
cowardice, such as causing a false alarm or endangering one's unit — the
charge Bergdahl faces.
The complexity of Article 99 may be one
reason it's not frequently used, said Morris, who published a book on
the military justice system.
"It is of course more complicated
than the desertion charge, not as well understood, a higher burden on
the government to prove," he said.
Huffman, now a law professor at
Texas Tech University, said another reason may be that different parts
of military law already deal with similar misconduct, including
disobeying orders and avoiding duty.
Recent prosecutions under the
misbehavior charge include a Marine lance corporal who pleaded guilty
after refusing to provide security for a convoy leaving base in Iraq in
2004. A soldier in Iraq was charged with cowardice in 2003 under Article
99 after he saw a mangled body and sought counseling, but the charges
were later dropped.
The specification that Bergdahl faces appears
in the 1971 case of an Army captain accused of endangering a base in
Vietnam by disobeying an order to establish an ambush position. The
captain was found guilty of other charges including dereliction of duty.
Another
case cited in a 1955 military law journal says an Army corporal was
convicted under Article 99 of endangering his unit in Korea by getting
drunk on duty. The article says he "became so drunk that it took the
tank company commander thirty minutes to arouse him."
For
Bergdahl, the Article 99 offense allows the prosecutors to seek a
stiffer penalty than the desertion charge, which in this case carries a
maximum sentence of five years in prison.
Bergdahl's attorney,
Eugene Fidell, has argued his client is being charged twice for the same
action, saying in a previous television interview that "it's
unfortunate that someone got creative in drafting the charge sheet and
figured out two ways to charge the same thing."
The scholars say that's a valid issue for Fidell to bring up in court, but it may not sway military authorities.
"The
question is: Is it a piling on?" said Jeffrey K. Walker, a St. John's
University law professor, retired Air Force officer and former military
lawyer. "It does almost look like you're trying to get two bites at the
same apple."