Army breaks out "misbehavior before the enemy" charge for Bergdahl

Bringing one of our older stories back off the shelf, there’s finally been some movement on the Bowe Bergdahl story which we should catch up on. It seems that after all this time the decision has been made to move forward to Court Martial. There had been some debate over whether he would even be charged with desertion after leaving his post and heading out to chat with the enemy, and he will. But that would have only carried a maximum sentence of five years which was viewed by many as being rather on the lenient side considering everything that took place afterward. So in addition to that the Army is trotting out a golden oldie from the books. (Yahoo News)

Military prosecutors have reached into a section of military law seldom used since World War II in the politically fraught case against Army Sgt. Bowe Bergdahl, the soldier held prisoner for years by the Taliban after leaving his post in Afghanistan.

Observers wondered for months if Bergdahl would be charged with desertion after the deal brokered by the U.S. to bring him home. He was — but he was also charged with misbehavior before the enemy, a much rarer offense that carries a stiffer potential penalty in this case.

“I’ve never seen it charged,” Walter Huffman, a retired major general who served as the Army’s top lawyer, said of the misbehavior charge. “It’s not something you find in common everyday practice in the military.”

Bergdahl hasn’t been doing himself any favors in the time since he returned home. (You may recall that he got caught up in a pot raid earlier in the summer.) Now he’s about to set forth on what will no doubt be a long, drawn out and political charged journey through the military legal system.

As I noted above, desertion is a rather cut and dried offense which would likely be easy to prove by itself and only see him in the brig for five years tops. Perhaps that would be considered a kindness by some observers, but there was clearly more to it based on the accounts of his colleagues. Desertion simply implies abandoning your post and running for it, most likely to more friendly climes. What Bergdahl’s intents were remain unknown, at least officially. His fellow soldiers insist that multiple troops died searching for him, but the Defense Department seems to dispute at least some of those claims.

Being charged with misbehavior before the enemy, unlike desertion, can carry up to a life sentence. Yet it’s still one step short of charging him with treason. I suppose it’s possible that after an extensive review the Army simply isn’t sure if they could make that charge stick. Did he leave to go help the enemy or just wander off and get captured? He’s reported to have told friends that he was thinking of leaving and “walking to China.” I can see where that might be a tough case to make. For that matter, I don’t know if the misbehavior will be a slam dunk.

So should he have been charged with treason anyway? I guess if the guy has already done five years being held captive by the militants that might be one factor in their decision process. Giving him a life sentence on top of it (or even an extensive one taking him into middle or old age) might be seen as adequate justice by the court. The one thing you can count on is having every politician from here to Sunday weighing in on it as it goes forward, similar to what we saw in the Manning case.

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