Back in September we noted that the Army had reviewed the case of Bowe Bergdahl and recommended a charge of Misbehavior Before the Enemy. They later released their suggestions for how to handle his prosecution and pushed for no jail time after his lengthy period of capture. It was further determined that the Sergeant should face a Special Court Martial where he would likely get a relatively lenient punishment. As it turns out, those were only suggested proposals and those calls have been rejected by Gen. Robert B. Abrams of Army Forces Command. He’s ordered the case to move forward and Bergdahl will face a full Court Martial on charges of desertion among other things. (New York Times)

A top Army commander on Monday ordered that Sgt. Bowe Bergdahl face a court-martial on charges of desertion and endangering troops stemming from his decision to leave his outpost in 2009, a move that prompted a huge manhunt in the wilds of eastern Afghanistan and landed him in nearly five years of harsh Taliban captivity.

The decision by Gen. Robert B. Abrams, head of Army Forces Command at Fort Bragg, N.C., means that Sergeant Bergdahl, 29, faces a possible life sentence. That is a far more serious penalty than had been recommended by the Army’s investigating officer, who testified at the sergeant’s preliminary hearing in September that prison would be “inappropriate.”

According to Sergeant Bergdahl’s defense lawyers, the Army lawyer who presided over the preliminary hearing also recommended that he face neither jail time nor a punitive discharge and that he go before an intermediate tribunal known as a “special court-martial,” where the most severe penalty possible would be a year of confinement.

This changes the game entirely in terms of Bergdahl’s ultimate fate. The maximum penalty for desertion during time of war is death, though the only soldier to be executed for this in the modern era was Private Eddie Slovik in 1945. Absent a death sentence, Bergdahl could easily face life in prison without the possibility of parole, but that’s still not a given. The officers who sit on the jury and the judge handling the case will make the ultimate determination, and as Doug Mataconis pointed out yesterday, Bowe could still wind up being out of the service (albeit at a lower rank) and back home in fairly short order.

In terms of the case against Bergdahl himself, the maximum charge he faces is life in prison but his ultimately punishment could end up being less severe depending upon both how the jury of officers that ultimately hears Bergdahl’s case views the case and how any subsequent appeals may go assuming that he’s convicted. Given the facts as we know them, acquittal seems unlikely but Bergdahl could ultimately receive a sentence far less than life in a military prison, and indeed could even end up getting off with a sentence as relatively light as loss of rank and a dishonorable discharge. Additionally, his ultimate fate is likely to take years to determine since the process is likely to outlast the Obama Administration itself.

Two points here: first of all, Doug brings up an interesting point in terms of politics. The reality is that this subject is now completely outside the hands of politicians and elected officials, with the singular exception of the President should he choose to extend a pardon. But that doesn’t mean that they won’t be talking about it on the campaign trail, particularly with the country’s renewed focus on terrorist groups and the candidates vying to show how tough they can be. The Court Martial is going to take quite a while if previous history (such as Chelsea Manning) is anything to go by. We’ll likely be well into the general election by the time this show reaches a crescendo and Hillary, along with her eventual GOP opponent, will be asked about it.

As to the final determination, it seems almost impossible that Bergdahl will be found innocent on all charges. Too much of this case has already been tried in the media and the court of public opinion and there seems to be too much evidence for him to get off without a conviction on something. Will it be desertion? That’s actually an open question because no matter how obvious it may seem to outside observers, the definitions are tricky. A good defense team may be able to make a case based on intent and the soldier’s state of mind when he walked off his post which could introduce enough doubt in the jury’s minds to avoid the most serious charge. And even if he is convicted on all or most of the charges, the defense will certainly be reminding the court that Bergdahl has already served a rather severe sentence in captivity for his actions… far worse than he would get in any SuperMax.

In a best case scenario for the defense, he could conceivably still just be busted down to E-1 and given a dishonorable discharge and lose all of his benefits. Would that be justice? I really don’t know. We’ll have to leave it up to the jury.