Bowe Bergdahl walked away from his Army post in Afghanistan on June 29, 2009. The military launched a major search; several service members were injured during those operations, and Bergdahl ended up in the hands of the Taliban-linked Haqqani network for nearly five years.
In 2017, Bergdahl pleaded guilty to desertion with intent to shirk hazardous duty and misbehavior before the enemy. Prosecutors asked for 14 years in prison, but the military judge gave him none, sentencing him instead to a dishonorable discharge, reduction to the lowest enlisted grade, and forfeiture of $10,000.
From the U.S. Army:
Sgt. Bergdahl is charged under the Uniform Code of Military Justice with one count of Article 85, "Desertion with Intent to Shirk Important or Hazardous Duty," and one count of Article 99, "Misbehavior Before The Enemy by Endangering the Safety of a Command, Unit or Place." Army Sgt. Bergdahl disappeared June 30, 2009, from Combat Outpost Mest-Lalak in Paktika Province, Afghanistan, and was subsequently captured.
An Article 32 preliminary hearing is a legal procedure under the Uniform Code of Military Justice designed to determine whether there is sufficient evidence to merit a court-martial and is required before a case can be tried by a General Court-Martial. Legal experts often compare this to a civilian grand jury inquiry. The Article 32 hearing will take place at Fort Sam Houston, Texas. Specific scheduling details and procedures for news-media coverage of the hearing will be announced at a later date.
Following the Article 32 preliminary hearing and receipt of the Article 32 preliminary hearing officer's recommendations, the report will be forwarded to a General Court-Martial convening authority who may refer charges to a General Court-martial, refer the charges to a Special Court-martial, dismiss the charges, or take any other action deemed appropriate.
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.
For a soldier who admitted abandoning a combat post, Bergdahl had already received remarkable mercy. Walking away was his decision, while the soldiers sent looking for him had to live with the consequences.
His rescue had already cost the United States plenty. President Barack Hussein Obama approved an exchange of Bergdahl for five Taliban detainees held at Guantanamo Bay, and the Government Accountability Office later found that the Defense Department violated federal law by failing to give Congress the required 30 days' notice.
The department also violated the Antideficiency Act.
America leaves nobody behind; she should bring her captured service members home. But the celebration still outran the facts. Then-national security adviser Susan Rice declared that Bergdahl had served the United States with "honor and distinction."
From ABC News:
President Obama stuck to a "sacred obligation" when he agreed to a deal with the Taliban to release five prisoners held by at the U.S. military facility in Guantanamo Bay in exchange for the freedom of Sgt. Bowe Bergdahl, White House National Security Adviser Susan Rice said today.
"This is a very special situation. Sergeant Bergdahl wasn't simply a hostage, he was an American prisoner of war, captured on the battlefield. We have a sacred obligation that we have upheld since the founding of our Republic to do our utmost to bring back our men and women who were taken in battle. And we did that in this instance," Rice told ABC's George Stephanopoulos today on "This Week" in a rare Sunday interview.
On Saturday, the president confirmed that Bergdahl, held for nearly five years, was in U.S. custody after a deal was struck with the Taliban with the help of Qatar - an ally of the United States - to release him. Qatar agreed to take the five men into custody and they will be banned from travel for a year.
Rice also cited Bergdahl's health as a major concern for the swiftness of the deal and as a reason why the president did not give Congress 30 days notice before the swap, even though U.S. officials said Saturday that he was in good condition.
"In fact what we had to do and what did do, consistent with the president's constitutional authority as commander in chief, is prioritize the health of Sergeant Bergdahl," she said. "We had reason to be concerned that this was an urgent and an acute situation, that his life could have been at risk. We did not have 30 days to wait. And had we waited and lost him, I don't think anybody would have forgiven the United States government."
Joining other members of his party in slamming the swap, Republican Sen. Ted Cruz of Texas, who appeared on "This Week" following Rice, said "all of us celebrate with Sergeant Bergdahl" before offering harsh criticism, saying the "terms of the deal are very troubling."
"I think it is very disturbing that we are releasing five acknowledged terrorist Taliban leaders in a deal with terrorists. That precedent and - you know, unfortunately, George, it's part and parcel with the pattern we've seen of the Obama administration across the board," Cruz said.
Three years later, Bergdahl stood in military court and admitted desertion and misbehavior before the enemy.
Even the guilty plea didn't end his escape from accountability. In 2023, Senior U.S. District Judge Reggie Walton vacated military rulings entered after the court-martial judge applied for a Justice Department immigration judge position without disclosing it.
Walton actually rejected Bergdahl's separate claims involving improper influence from comments by President Donald Trump, but he concluded the undisclosed job application required the latter military rulings to be voided.
Walton was appointed to the federal bench by President George W. Bush, so partisan shorthand doesn't explain his decision, but the judicial reach does. Bergdahl had already pleaded guilty, escaped prison, pursued military appeals, and then received a civilian court ruling that effectively wiped away the result.
The D.C. Circuit finally put a stop to it Tuesday. The court ruled that federal district courts can't use collateral review to vacate court-martial judgments. Bergdahl wanted his conviction expunged, his lost rights and property restored, and the military judgment erased.
The judges ordered his district court case dismissed for lacking jurisdiction.
Bergdahl can still seek further review, and his lawyers say they're weighing their options. His guilty plea and military sentence stand for now, including the dishonorable discharge.
A country can show mercy without pretending duty means nothing. Bergdahl chose to leave his post; other Americans went into danger because he disappeared, and he admitted his offenses in open court.
For once, the system corrected itself. The dishonorable discharge remains exactly where Bergdahl earned it.
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