Media Criticism

No Need to Prosecute Bowe Bergdahl?

By Benjamin Wittes
Friday, March 27, 2015, 8:30 AM

I normally make a point of not arguing with New York Times editorials, contenting myself with my role as their unofficial fact-checker on national security legal matters. (Don't thank me.)

I find myself called, however, to say a substantive word about today's editorial, "No Need to Prosecute Sgt. Bowe Bergdahl." There's no specific factual error in it that I want to correct. It's the very premise that requires comment.

In the Times's view, Bergdahl is a victim, not just of the Taliban but also of the Army itself:

Sergeant Bergdahl, who joined the Army in 2008, was among the legion of recruits who were granted eligibility waivers to join the military during a period when it was struggling to attract applicants because of the multiple lengthy deployments to Iraq and Afghanistan that were common. His attempt in 2006 to join the Coast Guard was short-lived; he was discharged 26 days into basic training because of concerns about his psychological state. Before Sergeant Bergdahl walked out of his base in Paktika Province on June 30, 2009, it was clear to some of his family members back home, and some of his comrades in Afghanistan, that he was emotionally distressed and at times delusional. Citing an Army investigative report, his lawyer, in a letter to the military, describes his client as “naïve and at times unrealistic.”

In a statement about the conditions of his detention, released by his lawyer on Wednesday after the Army’s announcement that it had filed charges, Sergeant Bergdahl says he was chained to a bed, locked in a cage, shackled and at times beaten. He had sores from his shackles and became skeletal as a result of poor nutrition and chronic ailments.

As a consequence, there is no value in trying him:

trying him for desertion and misbehaving before the enemy---for allegedly engaging in misconduct that endangered his unit---stands to accomplish little at this point. A conviction would most likely deprive a traumatized veteran of benefits, including medical care, which he will probably need for years. A dishonorable discharge would make it harder to rebuild his life as a civilian.

A trial would publicly raise important questions about how Sergeant Bergdahl was allowed into the Army and whether there were missed opportunities to avert the crisis his capture created. Those questions, however, should be addressed outside of a courtroom.

The argument that Bergdahl has suffered enough should, in my judgement anyway, be a serious factor in his sentencing---one that should likely preclude further incarceration if he is, in fact, convicted. But the Times skates over the very real and important interests the Army has in bringing a case like this to trial.

The Army devoted significant resources to looking for Bergdahl, after all. That involved real risks to other soldiers. At a minimum, his departure caused a significant distortion in the allocation of scarce human resources in a dangerous environment, as large numbers of troops spend large amounts of time trying to recover him.

Getting Bergdahl back ultimately involved genuine costs too. We traded five senior Taliban for him; these were not people who were cleared for transfer from Guantanamo either. It sends a message of unacceptable laxity---one with a corrosive effect of discipline service-wide---if the Army takes the view that it will tolerate soldiers' putting their fellows at risk and will simply absorb the costs of a capture when soldiers abandon their positions.

The Times dismisses all of this:

When Sergeant Bergdahl returned home last summer after the Obama administration agreed to release five Taliban prisoners in exchange for his freedom, it soon became clear that many people in the military harbored deep animosity toward him. Some called him a coward and argued that he put troops in Afghanistan in harm’s way as they devoted significant resources and energy to searching for him. This anger is understandable.

But the point isn't anger. The point is that the military has a huge interest in insisting that its people not behave this way and that it will charge and prosecute and punish them when they do.

Pulling out the stops to get our people back does not mean we don't hold them accountable once we do.

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