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EXCLUSIVE: Top Bush Terror Official Tells Us What Will Happen To Bowe Bergdahl

June 04, 2014

Now that Bowe Bergdahl has been freed from the Taliban with a trade for five detainees from the Naval Station at Guantanamo Bay, Cuba, his future is in considerable doubt. The President has said that the priority is Bergdahl’s personal recovery, while those who served with Bergdahl would like him tried as a deserter. The future likely lies somewhere between those extremes.

Army Plan for Reintegrating Bowe Bergdahl

The Army unit in charge of reintegrating former hostages has been rehearsing the return of Bergdahl every few months since he began living with the Taliban. They probably won’t get a chance to do that, according to one military legal expert.

“Bergdahl will be leaving the Army, the only question is how,” said Cully Stimson, former Deputy Assistant Defense Secretary in the Bush Administration in charge of detainee policy. Stimson is also a 22-year Navy veteran who just finished a 5-year tour of duty as a military judge. Stimson was Deputy Chief Trial Judge for the Navy and Marine Corps Trial and Judiciary.

Military Justice Coming

“The Army Secretary just said they’ll do a full, comprehensive review of the circumstances behind his departure” from his unit, Stimson said. “If the Army concludes at the end of their investigation that they would prefer charges of desertion, the Army prosecutor would have to prove beyond a reasonable doubt four elements:

  1. That the accused absented himself from his unit, organization, or place of duty
  2. That such absence was without authority;
  3. That the accused, at the time the absence began or at some time during the absence, intended to remain away from his unit, organization, or place of duty permanently; and
  4. That the accused remained absent until the date alleged.”

Stimson said points 1, 2, and 4 are pretty clear, but point 3 requires proving a specific intent.

“How do we know that he didn’t do all of the things we’ve heard about so far, and then when he got two miles off post said, ‘You know, this is really dumb. I’m just going to go back,’ and started walking back, and that’s when he got captured by the Taliban?”

It doesn’t require showing that Bowe Bergdahl had the opportunity to come back and chose against it, said Stimson. “The burden of proof is on the government to show beyond a reasonable doubt that he intended to stay away from his unit permanently.”

“Now, there may be something out there where he says in his writings ‘I’m leaving and I’m never coming back, you all can go to hell.’ That’s very strong circumstantial evidence of his specific intent.”

Renouncing American Citizenship Will Be Important At Trial

There are reports that Bergdahl left a note renouncing his American citizenship before joining the Taliban in 2009.

Stimson said that isn’t how a person actually renounces American citizenship, which takes a great deal of effort and paperwork at the State Department, typically in conjunction with another country. “I can write on a piece of paper today, ‘I am not an American citizen.’ Well, I still am.”

“That will be a key piece of evidence for the prosecutors, if they were going to go down this road and try to prove the specific intent element, that third element of desertion. But it could also just as easily be evidence that buttresses or fortifies his Post-Traumatic Stress defense, which you know is coming.”

“It clearly shows that he was taking steps, and a big step, toward lack of allegiance to his mother country.”

Much easier for prosecutors would be a simple Unauthorized Absence charge, Simson said. As every soldier knows, you can get a UA charge by being stuck in traffic.

“They can administratively separate him, and that’s the end of it.”

“They can administratively separate him, and that’s the end of it.”

If the accused deserted during a time of war, the maximum possible punishment is death, or punishment as the court-martial may direct. Under the UCMJ, a conviction without any other punishment at all is also possible.

The death penalty under current military orders is carried out by lethal injection. Since 1961, no one has had the death penalty sentence actually carried out. There are currently 5 people on death row, the most famous being that perpetrator of workplace violence, whose religion is not relevant, the former Major Nidal Hasan.

Follow @LHeal on Twitter for breaking news and his opinions on it.