Military Law Expert Thinks Bergdahl May Have a Good Case, McCain’s Comments Are Out of Line

Army soldier Bowe Bergdahl is back in the news. Bergdahl is reported to have fled from his unit in Afghanistan, after which he was captured by the Taliban and held for five years as a prisoner. The Obama administration arranged for Bergdahl’s release in 2014 in exchange for five Taliban prisoners who had been held at Guantanamo Bay. The exchange generated controversy that still continues. Bergdahl was subsequently charged with one count of desertion.

Stephen P. Karns

Stephen P. Karns

Following a preliminary hearing on the charge, hearing office Lt. Col. Mark Visger is said to have recommended that recommended against jail time for punitive discharge for Bergdahl. However, Visger’s report has not been released. Arizona Senator John McCain, a former P.O.W. himself, said that Bergdahl was “clearly a deserter.” McCain has vowed to convene a hearing if the Army does not punish Bergdahl. If convicted of desertion, Bergdahl could face a life sentence under Articles 85 and 99 of the Uniform Code of Military Justice. Dallas attorney Stephen Karns, formerly a major in the Judge Advocate General’s Corps, discusses the case in this report.

Karns says that Bergdahl’s situation could represent a clear case of desertion. The key question is whether Bergdahl intended to leave and stay away permanently. The case was investigated by Army Maj. Gen. Kenneth R. Dahl, but that report has not been released. However, some of the report’s findings have been released, and one of them was that Bergdahl did not intend to stay away permanently. Karns points out that, without the general’s report, it is difficult for anyone to answer the questions surrounding this case. “You have to wonder what does the government know and what do they not want the public to know? Even Sergeant Bergdahl.”

As to Senator McCain’s involving himself in the controversy, Karns suggests that this is not the first time in history that a politician has attempted to influence a proceeding of a branch of the armed forces. “But it’s unfortunate that he’s done this, especially someone who has military experience.” Karns says that, in his experience, there’s more politics involved in military courts than in civilian ones. Karns also says that President Obama’s involvement in the prisoner exchange probably helped to politicize the whole affair.

One problem is that people are judging the Bergdahl case without really knowing the facts. “People obviously form opinions without knowing all the facts.” That’s what happens every time we watch the news, Karns says. Americans who have watched news coverage of the Bergdahl story have gotten limited facts. What we know is that Sgt. Bergdahl left on his own, he abandoned his unit (whatever his ultimate intentions may have been), and he got captured by the Taliban. Then, five high-value Taliban prisoners were traded for one sergeant. On its face, “it’s not fair, and that makes people angry.”

Bergdahl’s case may be stronger than it seems to the general public or to Senator McCain. Karns points out that there has been a thorough investigation by an Army general of the case, and now the officer who conducted the preliminary hearing has recommended no jail time for Bergdahl. Karns notes that two officers who know more about the case than any outsiders have recommended no jail time. This suggests that there are facts we don’t know about and that Bergdahl’s case is a good one.

General Robert Abrams will finally decide what punishment Bergdahl will receive by accepting or rejecting the hearing officer’s findings. The situation is complicated because Senator McCain, who has already made his opinion known, will have a lot to say about any future promotions that might come for General Abrams. McCain is the chairman of the committee that oversees the promotions of senior military officers. Karns says that McCain’s statements represent a clear conflict of interest. Karns points out that Senator McCain admits to not having all the facts but is still calling for jail time. “That’s shameful, really.”

Stephen P. Karns is a solo practitioner in Dallas, Texas. He was formerly a Captain on active duty in the U.S. Army Judge Advocate General's Corps. Subsequent to active duty, he continued his service in the U.S. Army Reserves where he was promoted to Major. Mr. Karns completed his reserve duty in 2005. Military law is one of his areas of practice and particular expertise.  The Legal Broadcast Network is a featured network of Sequence Media Group.