- Eugene Fidell
lawyer for Army Sgt. Bowe Bergdahl. He joins us from Yale University, where he is the Florence Rogatz Visiting Lecturer in Law at Yale Law School. He is a co-founder and former president of the National Institute of Military Justice.
The U.S. Army says it plans to charge Sgt. Bowe Bergdahl with desertion and the rare charge of misbehavior before the enemy after he was held and tortured in Taliban captivity for five years when he left his base in Afghanistan in 2009. He was freed in 2014 in exchange for five Taliban prisoners held for years at Guantánamo Bay. Now Bergdahl’s defense could center on an Army probe that found he walked off his post in an attempt to reach another U.S. base to report on wrongdoing in his unit. An earlier military report found Bergdahl likely walked away on his own free will, but stopped short of finding that he planned to permanently desert U.S. forces. We get the details from his lawyer, Eugene Fidell, a lecturer at Yale Law School and co-founder and former president of the National Institute of Military Justice.
AMY GOODMAN: We turn now to developments in the case against Army Sergeant Bowe Bergdahl, who was held in Taliban captivity for five years after leaving his base in Afghanistan in 2009. He was freed last year in exchange for five Taliban prisoners who were held for years at Guantánamo. Then, last week, the Army announced plans to charge him with one count of desertion and one count of misbehavior before the enemy. If convicted, he faces life in prison. Bergdahl’s defense against a desertion charge could center on an Army investigation’s finding he walked off his post in an attempt to reach another U.S. base to report on wrongdoing in his unit and that he did not plan to permanently desert. The investigation has not been released, but CNN cites senior defense officials who say Bergdahl claimed to be concerned about problems with order and discipline at his post in Paktika province in Afghanistan and also had concerns about, quote, "leadership issues" at his base. The next step in Bergdahl’s case is an Article 32 hearing, a procedure similar to a grand jury.
For more, we turn to Eugene Fidell, the lawyer for Army Sergeant Bowe Bergdahl. He joins us from Yale University, where he’s the Florence Rogatz Visiting Lecturer in Law at Yale Law School. Fidell is a co-founder and former president of the National Institute of Military Justice.
Welcome to Democracy Now!
EUGENE FIDELL: Good morning.
AMY GOODMAN: Can you talk about the charges against your client, Bowe Bergdahl?
EUGENE FIDELL: Well, there are two charges, Amy. One, as you mentioned, is a charge of desertion. The other is a very unusual—let me back up. There’s a lot of cases of desertion, and they’re typically handled at a very low level in the military justice system. The other charge is misbehavior before the enemy, in that he left and—you know, that’s the gist of it. It’s simply that he left, and it was in a battle zone. At least that’s the allegation. Those cases are extremely rare. It’s under a statute that’s kind of a museum piece that dates back to the very early days of the republic. There’s probably something like it in the articles of war that George III signed in 1774. It’s a very, very rare charge. And frankly, I’ve been doing this since 1969; I can’t remember a case of an actual prosecution for that charge.
AMY GOODMAN: And, I mean, explain what it means, "misbehavior before the enemy."
EUGENE FIDELL: Well, typically, the charge entails things like dropping your rifle or running away from a battle, this kind of thing. What the Army seems to have done here is gotten creative and turned it into a sort of catch-all, where they can take any other offense—in this case, an offense of desertion, which they’re also charging—and sort of escalate the whole thing into World War III by calling it misbehavior before the enemy.
AMY GOODMAN: Eugene Fidell, you wrote in your memo about the Army’s report on Bowe Bergdahl: quote, "While hedging its bets, the report basically concludes that Sgt. Bergdahl did not intend to remain away from the Army permanently, as classic 'long' desertion requires. ... It also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer." Can you explain this?
EUGENE FIDELL: Well, I’m not going into any more detail than I did in the letter that I sent to General Milley, the commander of U.S. forces command, early in this month. The reason for that is, I think, you know, all of this is going to come out, has got to come out. And I want to make one point, if you don’t mind, Amy. The Army has a substantial report from Major General Kenneth Dahl, who investigated this thing to the hilt. He had something like 22 investigators going around for months and months, talking to everybody, examining all possible documents. The gist of what he said is—you can infer from what I wrote in my letter to General Milley. And frankly, I think it’s incumbent on the Army to release General Dahl’s report. Obviously, less—you know, there are some health-related things that are in the report and Privacy Act stuff, but basically the report ought to be out there so the American public can look at it and not be subject to the kind of rumor mongering that’s been going crazy lately.
AMY GOODMAN: I want to read from Bergdahl’s own description of his time held by the Taliban: quote, "I was kept in constant isolation ... with little to no understanding of time, through periods of constant darkness, periods of constant light, and periods of completely random flickering of light and absolutely no understanding of anything that was happening beyond the door I was held behind." Bergdahl also wrote that for years he was chained on all fours or locked in a cage, and that the sores on his wrists and ankles from the shackles grew infected. He said he was malnourished, and, quote, "My body started a steady decline in constant internal sickness that would last through the final year." How has his five-year imprisonment been described by the military?
EUGENE FIDELL: They haven’t really described it. In fact, General Dahl’s report, which I referred to before, which the summary of it, Amy, is 57 pages long, single-spaced, as I recall—the summary spent something like eight words on his treatment while he was in captivity. So, the Army has not described this in any detail. They’re more interested in delving into offenses from the 18th century.
AMY GOODMAN: And so, how do you think that should be weighed in what will happen to him, the fact that he was a prisoner of war for five years, where he was held, where he was tortured, where he was largely sick during that time, and attempted to escape, Sergeant Bergdahl writes, in his own words, 12 times?
EUGENE FIDELL: Oh, I think that’s entitled to a very considerable weight in the broad judgment as to how these charges should be disposed of. I mean, this is the broadest kind of discretion that the military knows. And you’d have to have a heart of stone not to take this kind of experience, prolonged for five years, into account. You know, people in the military are human beings. They’re not automatons. And I expect and hope that those who are ultimately going to have to make a decision here as to what should be done—and an Article 32 investigation doesn’t commit anybody to anything—will take this into account.
AMY GOODMAN: I want to play a comment from Lieutenant Colonel Michael Waltz, who says he led the search Bowe Bergdahl. This is a clip from his interview on Fox News last week, starting with host Sean Hannity.
SEAN HANNITY: I know we lost at least six soldiers. Is six the number? And how many others were injured in the search for him?
LT. COL. MICHAEL WALTZ: The disturbing thing was that the Taliban knew that we were pulling out all the stops to look for him, and were feeding false information into our informant network. So, they were baiting us into ambushes. In one case, they baited us into a house rigged to explode. Thank God it didn’t. But soldiers died looking for him.
AMY GOODMAN: That’s Lieutenant Colonel Michael Waltz. But, Eugene Fidell, you’ve said the Army’s report found no evidence that any soldier died searching for Sergeant Bergdahl.
EUGENE FIDELL: Right. Well, first, the comment. Mr. Waltz, who I believe was a junior officer in Afghanistan, also has on his webpage that he worked for Vice President Cheney, just, you know, for background. The Army said in its report what I said in my letter to General Milley. I think it’s incumbent on the Army to make the facts known. I also am concerned that something that Mr. Waltz may have said might be classified. I assume somebody will watch this and make a determination on that.
AMY GOODMAN: What do you mean?
EUGENE FIDELL: That’s about all I want to say on that. I’m not going to go any further.
AMY GOODMAN: Well, Eugene Fidell, you wrote in your memo that the Army’s report recommends that Sergeant Bergdahl be stripped of his status as a missing-captured prisoner of war. You note, quote, "International Humanitarian Law does not distinguish between personnel who have deserted and personnel who have not." You also cite everyone from Bergdahl’s captors to President Obama calling him a prisoner of war. This is Obama announcing Bowe Bergdahl’s release last June.
PRESIDENT BARACK OBAMA: We’re committed to winding down the war in Afghanistan, and we are committed to closing Gitmo. But we also made an ironclad commitment to bring our prisoners of war home. That’s who we are as Americans. It’s a profound obligation within our military. And today, at least in this instance, it’s a promise we’ve been able to keep.
AMY GOODMAN: The significance of this, Eugene Fidell?
EUGENE FIDELL: Right. That quote speaks for itself. Everybody in the picture understood that Sergeant Bergdahl was a prisoner of war. The International Law of Armed Conflict doesn’t distinguish between prisoners of war who are—or prisoners who are absent without leave versus prisoners who are not absent without leave. The status is precisely the same under international humanitarian law, as it’s called. And I think it’s preposterous that the Army at this late date might even consider changing his status. After all, you know, he was locked up by the other side in the most horrible conditions, conditions that none of us would possibly ever want to endure, and he endured them for five years. To his credit, I think, he did what soldiers are supposed to do when they’re taken prisoner and attempted to escape. That’s part of the soldier’s code. He attempted to escape something like 12 times, starting from the very beginning. And the Taliban punished him severely when they caught him again and again.
AMY GOODMAN: Eugene Fidell, you are Bowe Bergdahl’s attorney. Presumably you’ve been negotiating back and forth with the Army as he’s held at—what is it?
EUGENE FIDELL: Stop right there. Stop right there. We have had no negotiations with the Army, and suggestions to that effect are simply false. Also, suggestions that people died searching for him are false. That’s what the Army concluded, that there was no evidence that anyone died searching for him.
AMY GOODMAN: So, were you surprised when these—and are they called charges—came out? I mean, he still has to go before an Article 32 hearing.
EUGENE FIDELL: No, I can’t say I was surprised to see a desertion charge, because that’s, you know, been in the wind. I don’t want to say too much about—more than what I’ve already written about General Dahl’s report. But, no, the desertion charge didn’t come as a surprise to me. The what I’ll call the George III charge did come as a surprise to me. And, you know, where that came from, I have no idea, and I’ll be interested in finding out where it came from.
AMY GOODMAN: When you said, "Stop right there," what’s the implication of saying you might have spoken to the Army?
EUGENE FIDELL: Well, I just think that there’s a lot of people out there who are—I won’t say economical with the truth, they’re making things up. For example, it was said months and months ago that I had been handed a charge sheet. I think that was back in January. That was simply false. And someone in the Army was leaking thinks, presumably with a view to manipulating this controversy. Similarly, the notion that we’ve been—we’ve been negotiating, and the Army has been, you know, bringing pressure on the defense, completely made up. That’s all I need to say about that.
People will say—and, Amy, if you can humor me for one more second. The other day, I had occasion, for some reason, to be interviewed by Russian television on this subject. I guess they wanted to score points against our country. And I took the opportunity to deliver a little sermon to the audience about the virtues of the First Amendment. I’m a kind of First Amendment guy. So, you know, what people say, God bless them. You know, there’s politics, unfortunately, wrapped up in this case, based on nothing that my client has done, but entirely extraneous considerations. That’s the strength of our democratic system. And, you know, let the chips fall where they may. What I don’t want, however, is for my client to be made a chew toy by anybody while they’re trying to score points against the president of the United States or others.
AMY GOODMAN: Do you think the second charge that is so rare, misbehavior before an enemy, that where he could face life in prison, beyond the five years of captivity that he faced in Afghanistan, might be brought to push him into a plea deal? And is a plea deal possible in the military?
EUGENE FIDELL: Well, pretrial agreements are, of course, possible, and many cases are resolved on the basis of a pretrial agreement. In terms of what the motivation was behind the drafter of that second charge, sticking it onto the charge sheet and getting somebody to sign the charge sheet, you’d have to ask them.
AMY GOODMAN: Do you think Bowe Bergdahl can get a fair trial?
EUGENE FIDELL: I’m very concerned about the barrage of hostility that has inundated the country for basically since last year and continuing up to the present instant. The military has a replica of the jury system. You know, basically juries consist of active-duty personnel that can be enlisted. Typically they’re officers. And I think the military is going to have a very, very hard time, if this case goes to a trial, assembling a panel of jurors or members, as they’re called, who can truthfully say that they have not been exposed to or in some manner influenced by the barrage of really unprecedented hostility that’s been thrown at my client.
AMY GOODMAN: Eugene Fidell, I want to thank you for being with us, lawyer for Army Sergeant Bowe Bergdahl. Eugene Fidell is joining us from Yale University, where he’s the Florence Rogatz Visiting Lecturer in Law at Yale Law School. He’s also co-founder and former president of the National Institute of Military Justice. Right now, Sergeant Bergdahl is at Fort Sam Houston in San Antonio. When we come back, we’re going to speak with Matthew Hoh, who has just written a piece for Politico headlined "Stop Persecuting Bowe Bergdahl: He and his parents have suffered enough—like all of us veterans." Stay with us.