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Bringing Bergdahl Home Was the Right Choice—Deserter or Not

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Charles J. Dunlap, Jr., is a retired major general in the U.S. Air Force, executive director at the Center on Law, Ethics and National Security and a law professor at Duke University School of Law.

The Army’s decision to charge former Taliban captive Sgt. Bowe Bergdahl with desertion and misbehavior before the enemy is reigniting the controversy about the prisoner exchange that freed him in Afghanistan in May 2014. If the evidence (which the Army has not yet released) proves Bergdahl guilty, the decision to bring him home — even at the price of freeing enemy detainees — was still the right one, as was yesterday’s decision to task the military justice process with determining his guilt or innocence.

Bergdahl’s case is already layered with the unusual. While there have been thousands of desertion cases since 9/11, such allegations rarely occur in war zones. Besides Bergdahl’s charges, the convoluted case of Marine Corporal Wassef Ali Hassoun is one of the very few.

Hassoun’s lawyers claimed that at one point their client was kidnapped by insurgents in Iraq and held for a few weeks. After a return and yet another departure, Hassoun wound up an absentee in Lebanon before extensive litigation led to his extradition back to the United States. A Camp Lejeune court-martial convicted him February and sentenced him to more than two years in prison.

Unlike with Hassoun, there is little doubt that Bergdahl spent not just weeks, but nearly five years as a Taliban prisoner, under circumstances his lawyer plausibly describes as harsh. Still, as a matter of law, if Bergdahl left his unit with the intent to desert, the offense is complete, even if he later changed his mind and wanted to come home.

Much the same thing can be said about the misbehavior charge. If his actions endangered “the safety of a command, unit or place,” however briefly, the offense is complete. In other words, all the acts necessary to convict Bergdahl may have occurred shortly after his departure from his unit. His subsequent years of captivity, however harrowing, would not themselves provide a legal defense to charged crimes.

But Bergdahl’s treatment in captivity could properly factor into the decision as to whether the case ought to go to trial. Even if the evidence shows him technically guilty of the allegations, the convening authority is not required to order a trial if another disposition better serves justice. Additionally, if Bergdahl is sent to trial and convicted, his treatment as a prisoner could mitigate any potential sentence.

That could matter a lot. Consider the case of Marine Private Robert Garwood, who was captured in Vietnam in 1965 but who did not return to the U.S. until 1979. In 1981, Garwood was convicted at court-martial of various acts of misconduct as a prisoner of war, including assaulting another POW. While dishonorably discharged, no confinement was imposed, probably in deference to the time Garwood spent in captivity.

Regardless, speculation about what Bergdahl may or may not have done, or intended to do, does not diminish the rightness of the actions taken to get him back.

There is a simple reason for this: In the military, it is axiomatic that no soldier sent to foreign battlefields is left behind. We do not and should not try to divine in advance whether this or that soldier is “worthy” of rescue. We presume them all innocent, and we do everything we can to keep faith with them and get them all home. There are no exceptions to this principle.

Don’t be confused by the claims that Government Accountability Office lawyers found the prisoner exchange “illegal.” They merely found that the 30-day congressional notification requirement was breached. In addition, the GAO didn’t even consider the highly questionable constitutionality of that rule. Notification aside, it’s abundantly clear that the president, as commander-in-chief, had authority under Article II of the Constitution to conduct a prisoner exchange, as commanders have done throughout human history.

At the same time, it’s imperative that Bergdahl be held accountable for any misconduct he may have committed. When misbehavior occurs in a combat environment, it can be especially destructive to the morale and discipline so necessary for battlefield success.

Discipline is uniquely indispensable to the armed forces. As the Manual for Courts-Martial indicates, military law is different from civilian law because it intends “to promote efficiency and effectiveness” in the armed forces in order “to strengthen the national security of the United States.” Civilian jurisprudence has no such purpose.

Military law must “promote justice,” and that means that those in uniform are entitled to be judged by Americans under American standards, and not left to rot as Taliban captives, regardless of the accusations against them.

The right thing was done to bring Bergdahl home, and the right thing now is to fairly determine if any wrongdoing occurred.

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