Bowe Bergdahl Faces a Preliminary Hearing Over Charges He Deserted His Post

AP file photo

Sergeant Bowe Bergdahl was taken from a pickup truck on June 4, 2014, and escorted to a helicopter after five years of captivity. His Taliban captors traded him for five senior members of the group in U.S. custody.

On Thursday, Berhgdahl will be in court at Fort Sam Houston in San Antonio for a preliminary hearing into whether he deserted his post in Afghanistan before finding himself in the hands of the Taliban. The Article 32 hearing, which is similar to a grand jury in the civilian-justice system, could last several days, and it will determine if Bergdahl will face a court-martial.

The Associated Press has the background to the legal case:

Bergdahl’s lead attorney, Eugene Fidell, has said the hearing will provide the public with details about what led to the Idaho native’s disappearance from his post in southeastern Afghanistan on June 30, 2009. Before disappearing, Bergdahl had expressed opposition to the war in general and misgivings about his own role in it. Fidell has cited an Army investigation that determined Bergdahl left his post, but not the Army, and that his “specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.”

It’s unclear if Bergdahl will take the stand. Military prosecutors declined to discuss the case, the AP reported.

Bergdahl, 29, was charged in March with desertion and misbehavior before the enemy. He faces a maximum of five years in confinement on the desertion charge; and up to life in a military prison for the charge of misbehavior before the enemy. But Bergdahl could also receive a dishonorable discharge, be reduced in rank, and made to forfeit his pay.

My colleague David Graham summed up the range of penalties Bergdahl faces—if he goes to trial and is convicted.

Legal experts have cast doubt on the Army's ability to actually convict Bergdahl on either charge, because of the difficulty of proving them. But the process could create an opening for Bergdahl to request a less-than-honorable discharge. That might also involve surrendering pay or military benefits. If Bergdahl and his lawyers could agree on such a resolution with the military, it would prevent a court martial and excuse the Army from paying benefits like a pension to someone they believe walked away from his unit in Afghanistan.

Some experts had speculated that the Army would instead attempt to bring Bergdahl up on a charge of being absent without leave, which—unlike desertion—does not require proof that he intended to leave his unit permanently.

The deal under which Bergdahl was freed was controversial, as David pointed out at the time—with criticism of both the Army sergeant as well the way the Obama administration handled the swap.

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