Army Sgt. Bowe Bergdahl was arraigned last week at Fort Bragg on a charge of desertion. The charge of desertion was a surprise decision by the Army. It occurred after Bergdahl appeared on the popular podcast “Serial” (see LBN’s report). Bergdahl’s case has been surrounded with controversy ever since he was released as part of a prisoner exchange by the Obama administration, and the release was followed by a Rose Garden occasion with President Obama. Things changed soon thereafter, and Bergdahl was accused of misconduct. Dallas attorney Stephen Karns, formerly a major in the Judge Advocate General’s Corps, discusses Bergdahl’s case in this interview by Mark Wahlstrom, CEO of Sequence Media Group (and see his earlier report on LBN).
Karns explains that he has served in the Army JAG Corps, reaching the rank of major. He is now in private practice in Dallas and has been an attorney for twenty years. His practice is now almost exclusively representing service members worldwide in cases involving the Uniform Code of Military Justice, a subject about which most lawyers know very little.
Bergdahl’s case has proceeded in a typical fashion. In the beginning of these cases, an investigating agency (or one officer, in Bergdahl’s case), reviews all the facts and interviews the witnesses, perhaps including an interview with the accused. At that point, the matter is presented to an officer, perhaps a colonel, who has the authority to convene a court-martial. The officer can also send the case to an Article 32 hearing. In that hearing, witnesses can be called, and the hearing officer makes a recommendation to the commander who can convene a general court-martial (in this case, General Abrams). In this case, the recommendations to Gen. Abrams were that the case be resolved at a level below a general court-martial. Gen. Abrams, however, decided to proceed with a general court-martial, exposing Bergdahl to the maximum punishments for the offenses with which he has been charged.
Because of this circumstance, Bergdahl could be sentenced to life in prison if he is convicted. Karns points out that, had the case been sent instead to a special court-martial, the maximum prison sentence that could have been imposed is one year in prison. Gen. Abrams could also have dismissed the charges, ordered a summary court-martial, or sent the matter back to Bergdahl’s commanding officer for non-judicial punishment under UCMJ Article 15. Karns explains that the difference between a special and a general court-martial is essentially the difference between a misdemeanor and a felony. At present, the case is ready to be assigned to a judge for further proceedings.
In this case, Gen. Abrams decided to proceed with a general court-martial, even though Lt. Col. Mark Visger, who presided over the Article 32 hearing, and Maj. Gen. Kenneth Dahl, who led the investigation, both recommended something less than a general court martial. Decisions like this are not common. Gen. Abrams was not required to explain his reasons. But, Karns points out, Gen. Abrams’s future assignments might be affected by the decisions he makes in handling this case. The military is more political than civilian courts in this regard. “Decisions are based on politics as well as justice.” In this case, there has been a lot of very public political pressure, including from Senator McCain, who said he would convene a hearing to look into things if a general court-martial were not ordered.
Karns says that there is no empirical evidence as to what effect, if any, political pressure has had on this case. On the other hand, there are obvious signs that there must be something big here, given that two fairly high level investigators had already recommended little or no punishment for Bergdahl. Then there is the question why we would exchange five mid-level commanders for one low-level Army sergeant. In other circumstances, it would have been easy for Gen. Abrams to simply accept the rulings and let another commander at another level deal with the problem.
Wahlstrom observes that the social media have played an important role in Bergdahl’s case all the way, beginning with a campaign by his parents to get him released. Then the exchange of five Taliban commanders for one soldier was not popular, and it was made less popular by President Obama’s ceremony saying that Bergdahl had served with honor and distinction. It is also clear that Bergdahl chose to leave his post. The final straw may have been Bergdahl’s going on the “Serial” podcast to tell his story.
Karns says that the conventional wisdom would have been for Bergdahl to keep quiet and make no statement. Any statement a defendant makes can come back to haunt him in court. In this case, where the defendant is a soldier, his speaking out could influence his punishment should he be convicted. His taking to the air on the podcast might be viewed as arrogance and as contrary to military practice. On the other hand, Karns says, Bergdahl may have made a smart move.
As to how the case will play out, Karns says it is hard to speculate. But, he adds, the sentence will probably not be life in prison. And there must be some facts that will be favorable to Bergdahl, based on the recommendations by two officers that the case not proceed to a general court-martial. Karns says that the panel making the decision will probably have some diversity, and it would not be surprising if the sentence were no more than ten years. And, based on the other investigations, a sentence of less than a year is certainly possible. Bergdahl doesn’t sound like a man with malicious intent. There may also be plea bargaining.
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.