Grounding Bergdahl’s escape turkey
Now that Bowe Bergdahl is facing the prospect of prosecution by the Army for deserting his post and for misbehavior, his liberal defenders, those who swallowed whole Susan Rice’s assertion that he served with honor and distinction, will be raising defenses for his crimes. Aware of the leftist media support for its client, Bergdahl’s defense team is already floating tales intended to at least mitigate, if not excuse entirely, the cold fact that this soldier deserted his guard post in the presence of the enemy, sought out that enemy, and remained with them until he was bartered back to this country.
Bergdahl’s attorney, Eugene Fidell, is quoted by the Seattle Times under this unbiased headline: “Bergdahl charged despite torture, attempts to escape.”
“This is a hellish environment he was kept in for nearly 5 years, particularly after he did his duty in trying to escape,” Fidell, a former military lawyer now in private practice, told The Associated Press on Thursday. “There is no question in my mind that a convening authority would not be doing his or her duty without taking into account the circumstances under which Sgt. Bergdahl was held.”
In the same article, Bergdahl claims to have attempted escape about a dozen times. So it is obvious that despite intelligence reports that he moved about freely among his captors, sometimes armed, a key element of Bergdahl’s defense is going to be that he was held in close confinement from which he tried to escape repeatedly.
And my response is, “So what?”
That response counts, because it’s coming from someone who served as an NCO in infantry units in two sister regiments of Bergdahl’s 501st Parachute Infantry in an earlier war. In that capacity, I could have sat on his courts martial board at one time. My response reflects a view that I will wager is ingrained in many of those officers and NCOs who may be called upon for that duty at some time in the future.
Let me explain. Bergdahl did not like the Army, a dislike he made clear in his writings home. Those writings demonstrate that like many young soldiers, his very limited view of the big picture led him to erroneous conclusions typical among the ranks. His self-assured sense of knowing better than his superiors led him to chafe under their leadership, in his case far more than is normal. Bergdahl likely had a flower-child upbringing, and the rigid and regulated routines necessary to maintain good order and discipline in a military unit may have constrained him to a greater extent than most soldiers. An example of that is that according to his platoon mates, he harbored some dreamy desire to go out into the mountains in some sort of rite of passage – a walkabout, as the Aussies call it – a pastoral stroll among the primitives to India.
And if Bergdahl chafed under Army restrictions on his freedom, imagine how constrained he felt in his new life among the people he had once idolized. They would doubtless have proved every bit as determined to curb his transcendental dreams of traipsing through the poppies.
Every officer and NCO has to deal with soldiers like Bergdahl, who simply can’t abide the considerable limitations on their freedom so necessary to preserve good order and discipline. Some soldiers can have their attitudes adjusted sufficiently to allow them to serve out their time with minimal success. Others, like Bergdahl, fueled by a self-righteous sense that only their way will ever be the right way for them, simply walk away. Those are the ones who never come back, which is the essential element of desertion under the Uniform Code of Military Justice.
So if Bergdahl did attempt to escape the Afghans, a claim we have but his and his attorney’s words for, what was his motivation? Was he seeking to return to the American unit he so despised, or was he seeking to continue on his way with his idyllic walkabout through the Himalayas to India, as he had previously told fellow troopers he wished to do? Were I weighing that question as a member of Bergdahl’s courts martial, I’d have to ask myself, “If he’d already felt so repressed by Army discipline that he’d walked away, would he wish to return to that, or, once free of the Afghanis, would he be inclined to continue his flower-child journey to nirvana on the sub-continent?” Knowing how much Bergdahl despised my Army, its leadership, and our bedrock concept of good order and discipline, I think I know how I’d come down on this crucial question of that foolish young man’s intent.
Are you listening, Counselor Fidell? Keep launching that turkey of an escape excuse; like a real turkey, it’s not gonna fly very far among those who count.
Crossposted at American Thinker
Category: Shitbags
Fidell is what we call a Barracks Lawyer.
Bergdahl now claims he left his post to report to a general, and was planning to return to his base.
http://www.bloombergview.com/articles/2015-03-27/bergdahl-lawyer-says-he-was-awol-not-a-deserter
His lawyer says the most he can be charged with is AWOL, for he was only gone a couple of hours before being captured.
Further, the fact that the Army returned him to duty instead of incarcerating him indicates the Army already absolved him of the offenses he’s currently charged with.
I think they should. They should assign him to an undercover roll inside the Ft. Leavenworth correctional barracks for 20 to 40.
His lawyer says the most he can be charged with is AWOL, for he was only gone a couple of hours before being captured.
That’s not in the story linked to in the original post. And I refuse to believe that Eugene Fidell (one of the most experienced court-martial defense attorneys in the country) is stupid enough to say something like this.
You can be guilty of desertion no matter how long you were away, and people certainly have been convicted when they were away for only a few hours. The question is your intent. For desertion with intent to shirk, the length of time you were away is quite irrelevant (though it may be mitigating).
Further, the fact that the Army returned him to duty instead of incarcerating him indicates the Army already absolved him of the offenses he’s currently charged with.
Whoever told you that is quite ignorant.
Pretrial confinement is heavily disfavored in military justice, and is rarely given even to people accused of rape or child molesting. You need evidence that the guy is going to commit a serious offense before trial, or is likely to not show up for trial. (And that means you have to show not only that he has a propensity for running away, but that the unit can’t ensure his attendance by less severe means.)
“Not putting a man in pretrial confinement” is not, and never was, a form of “exoneration.”
You are the expert here so I’ll tale your word, but I also understand and agree with everything you stated.
I would just add that Bergdahl seems to have already shown that he has no problem running away. That would have been enough for me to confine him, if it were up to me which it is not. There are professionals already in place to take care of this sort of situation and that is a good thing as it appears I would trample all over their rights.
Thanks for all of insight that you have been posting. It helps understand all of the processes involved.
Blaster, that’s definitely a consideration…and AWOL guys are often easy to get into pretrial.
I can understand why they didn’t do that here. Once you get a man into pretrial confinement, under Article 10 of the UCMJ, you have to take immediate steps to get him to trial. If you don’t, he can get his case dismissed with prejudice.
Given the incredibly long wait between his return and now…I can see the command did better to risk his fleeing again than to sacrifice the possibility of a conviction.
@ ALBERICH, Et Alii:
“Whoever told you that is quite ignorant.”
____________________________
Sir, nobody “told” me anything.
I was referring to the defense attorney’s own comments in the news article, which you can read at this URL:
http://www.bloombergview.com/articles/2015-03-27/bergdahl-lawyer-says-he-was-awol-not-a-deserter
Thank you.
Well, I’ll be damned. He cites a rule I never heard of, Rule for Court-Martial 907(b)(2)(D)(iii):
“2) Waivable grounds. A charge or specification shall be dismissed upon motion made by the accused
before the final adjournment of the court-martial in that case if….Prosecution is barred by:…Constructive condonation of desertion established
by unconditional restoration to duty without trial of a deserter by a general court-martial
convening authority who knew of the desertion.”
11 years and I never heard of that one ’til today. Thank you and beg pardon.
(I don’t think it’ll work, mind you; I have a suspicion that the general didn’t himself order Bergdahl back to duty unconditionally. But we’ll see. He might even be able to argue that the president did…)
I heard that. Of course, American General’s are always doing black ops in the hinterlands so that would be the obvious place to find them.
I laughed so hard when I heard this floated by his attorney I almost barfed onto the keyboard.
I think it’s going to be easier to secure a conviction under Art 99 than 85.
As to the torture/escape defense, wouldn’t those issues be of mitigation and extenuation, rather than an actual defense as to the specifics of the charge? That is, a consideration for sentencing, not for conviction.
Correct. But they are going for public appeal, hoping a political figure steps in….they probably assume that someone can change the military’s mind.
It’s like the time I my company commander called a health and welfare.
We did it, my PSG found some joints in one troop’s room. Dogs were called in. After a several hour search they found a pound of marijuana, some bags of coke, and fake IDs with the other people’s faces but names and social #s of people in the unit. He was our admin clerk.
As the MPs hauled him off he looked at the CO and said, “I’m takking the Article 15.”
They don’t understand. Not one bit.
I think it’s going to be easier to secure a conviction under Art 99 than 85.
Desertion with intent to shirk is one of the easiest crimes in the world to prove.
Did he know his unit was doing a combat zone mission (which is typically both “hazardous duty” and “important service”)? Yes.
Did he leave on purpose? Yes.
That’s all they need. Guilty!
As to the torture/escape defense, wouldn’t those issues be of mitigation and extenuation, rather than an actual defense as to the specifics of the charge? That is, a consideration for sentencing, not for conviction..
You got that exactly right.
Of course, it can also be used to try to convince the command not to bring a court-martial in the first place, and that is doubtless why Mr. Fidell is raising it now.
Perhaps my view is narrow-minded, but citing his experience as a POW for mitigation of the penalties for the charges is like excusing a man who killed folks during a bank robbery, but not charging him because he stopped during his escape to let a little old lady cross the street. They are unrelated.
Hey, that was a pretty good show! 1978-82? I was just a little shit back then! LOL
“As God as my witness I thought turkeys could fly”
Classic line.
I have watched that entire episode every year for as long as I have been able to get it on the internet.
It is one of the funniest episodes of a very good sitcom and that episode is a true classic in every sense of the word.
My favorite is Les Nesman describing the turkeys falling out of the sky and Johnny Fever’s response…
“Thanks for that on the spot report Les, film at eleven !!!
It’s available on Hulu on the internet. If you haven’t seen it you might want to check it out. I still laugh my ass off at it !!!
He tried enlisting in the Foreign Legion before the Army. I think things would have gone a lot worse if he had deserted them.
Ohh, if he had deserted the FFL, he’d already be in a shallow unmarked grave with a bullet in his head.
And the Foreign Legion saying “Bergdahl? Sorry no one by that name in our ranks.”
The latest on CNN is claiming he left his post to walk to the next-nearest post to report wrongdoing because he didn’t trust his chain of command. Very slimy. It’s provoking ME to use violent language.
Oh, yeah, a jury of his peers are going to buy that!
Well, a jury of his peers would likely hang him.
As it is, a panel of his superiors will likely reduce his rank, take his pay and give him a less than honorable discharge.
Given this is “Today’s” Army, I’d be surprised at more than that
Wow, and I thought I hated this worm before. Now I’m practically salivating at the thought that he could face a firing squad. The gall on this asshole to slander the very same men who incurred casualties trying to rescue his worthless ass!
That was my reaction too, radar. Trying to save his neck at the expense of the people who had his back.
Then again, he didn’t care about them when he deserted in the first place, I don’t know why I’m so surprised now!
Oooooh, I’d volunteer to serve on his firing squad. Also, I accidentally hit report comment before hitting reply– can we please move that bright red eyesore to the right side of the comment box or something?
Obviously it was his ONLY way to communicate with those above him. What else was he supposed to do?
It’s not like he could call on a land line…oh wait.
Well, it’s not like he could use email…ummm, hold on.
It’s not like he could tell anyone leaving the FOB about his concerns…just a moment
It’s not like he could wait for someone to come onto the FOB and tell them…oh, he could of done that also
It’s not like he had access to the US Mail…he did, you say
And last but not least…
It’s not like he could go through the chain of command…Oh screw it, he’s just a lying POS.
Based on the fact that it was revealed on CNN, and, well, all of the rest of it, I’m strongly inclined to believe this isn’t even aimed genuinely as being a legal defense.
No, it’s a media defense, in the hopes of pressuring the military into giving the verdict they want (or one they can live with) by trying to stir up public outrage, or get a powerful enough politician on board.
And it’s just so incredibly slimy. I had to vent some strong invective so it wouldn’t build up in my system when I saw that.
Considering he already deserted his brothers-in-arms and abandoned his weapon, does this really surprise anyone? It just hammers it home again what a sleazy Blue Falcon he is.
That’s been tried before…the famous case was United States v. Rockwood. The guy abandoned his place of duty in Haiti to go “inspect” a prison where he’s heard about human rights violations…or at least that’s what he said. It didn’t work back then, either.
Happily, the desertion and misbehavior statutes do not include any language that says, “It shall be a defense that the accused was a knight-errant, sallying forth into the world to right all wrongs, because knight-errants do not have to stay at their place of duty or keep hold of their weapons.”
Very interesting and informative, Alberich; thank you for your posts. I admit to shooting my mouth off without sufficient information, for which I apologize.
You didn’t say it would work, only expressed proper righteous anger at the idea that he’d ever try such a slimy excuse…so I don’t see that you said anything out of line. Keep it up, I say!
Except that he mailed all his stuff home and left his gear and weapon behind.
Blaster, he was anticipating that the General was going to rescue him from his fate worse than death.
You know. Like all Generals save sniveling PFCs when they whine to them.
Oh, well,,I wasn’t thinking. I get it it now.. Poor kid trying to do right. He’s just misunderstood.
If he wasn’t running away, then why the *BLEEP!* did he leave his rifle, NVG’s, and Pro-Mask behind when he ran away? IMHO, he needs to spend some time making big rocks into little ones, knowhiutimean?
Perhaps Birdturd can use some of his classic ballet moves to spin out of this. But I don’t think he has many moves left. I can see him going AWAL before this goes further.
imho
I say the following based on what I know the POWs at the Hanoi Hilton went through.
I don’t give a crap what his excuse was.
He abandoned his post. Other people were damaged by his lack of responsiblity. He’s a self-centered, lying piece of hog’s offal. As far as I’m concerned, he can rot where he sits.
I have no sympathy for him at all.
Ditto.
I’m still thinking the Article 32 hearing concludes with a finding of a lack of evidence that anyone but Bergdahl can definitively explain why he left. I believe the Article 32 hearing then concludes that there is no reason to proceed to a GCM and recommends instead an administrative separation for the much lower AWOL for 72 hours claim.
I hope to be proven wrong, but I will not be surprised at all to find I am close to the mark when the Article 32 hearing concludes.
Even if for some godawful reason they went down to AWOL…and desertion with intent to shirk is ridiculously easy to prove…it wouldn’t be just for the time before he was captured. Look at the discussion of Article 86 in the Manual for Courts-Martial:
“The fact that a member of the armed forces is convicted by the civilian authorities . . .does not excuse any authorized absence, because the member’s inability to return was the result of willful misconduct.”
And again,
“Inability to Return. The status of absence without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense enforced or involuntary is a factor in extenuation and should be given due weight when considering the initial disposition of the offense.”
So, it’s relevant to mitigation…but you can’t convert your five-year AWOL into a three-day AWOL just because you weren’t able to return after the first three days. (The exception is if you were authorized to be away when you became unable to return…e.g., if you had 3 days leave, broke your leg in the wilderness on day 2, and couldn’t get back ’til day 10, you’re protected; but if you went AWOL, and on day 2 of your AWOL you broke your leg in the wilderness, tough…you’re responsible for the whole time you were gone.
P.S. – That “inability to return” language I just quoted shows you that Mr. Fidell is doing the right thing for his client by bringing this stuff up. Whether it really will matter is something we shall see.
I hope you’re right, but until I see it go that way I won’t be surprised to see it go the lightest way possible…
In high profile cases there are a lot of things that don’t go anywhere near what happens to those low profile cases that nobody cares about the defendant.
Time will tell if the fix is in or the truth is in…
As a former JAG, what’s your guess on how long the AR 32 plays out? Are we looking at something that might still be going on as the political calander moves closer to election season?
Oh hell no. Article 32’s usually happen much, much faster than that (as in “weeks” rather than “months” after charges are preferred).
Good Time/Bad Time; One of the few things that I learned and kept stored in my privately owned server maintained in my BHG (Brain Housing Group). I actually had the opportunity to impart some of that wisdom to one of our less stellar Marines, when, upon released from his two week vacation get away with the Onslow County Sheriff, he was bitching that his LES did not give him the standard 2.5 days of accrued leave. I gleefully told that POS that if you do not have the means to return to the Marine Corps (e.g. you are too busy being the prison bride), that is considered “bad time”, so no leave is earned.
With that being said, I need the professional opinion of the more experienced barracks lawyers. Using the given Alberich, if PFC Schuckatelli is on authorized liberty, and is involved in an accident that incapacitated him, other than his injuries, he has no legal problems with his command. If that accident occurred after the time that he was supposed to be at his appointed place of duty, then he is looking at standing before the Man and face the music. So, with those parameters, assume that he is stationed at Camp Lejeune, is on an authorized 96 hour liberty with a report time of 12:00 on Tuesday. If he is in New York City at 11:45 Tuesday morning and is involved in accident that prevents him returning to his command, is he still covered? He is still on authorized liberty, but given the distance between his location and appointed place of duty, there is no way that he would not be in an unauthorized absence status when 12:00 arrives. (A lot of double negatives in that last sentence). Discuss among yourselves.
I’d have to do research to answer that one for sure. The strict language of the MCM discussion suggests he’d be okay on the AWOL…but I’d want to look for precedents if I were advising a commander.
If I couldn’t find any precedents, I’d consider advising the commander to charge negligent dereliction of duty (he had a duty to be in a position to return to leave status; he failed in that duty when he remained in NYC just a few hours before he was due back). It’s one of the broadest charges in the UCMJ and it’s also got one of the lightest punishments (along with short AWOLs). Too much creativity can be bad for the prosecution.
We aren’t privy to the evidence but it must be damn strong just for the charges to have been preferred, what with the incredible pressure not to charge him.
I’ve played the Bergdahl “walk away from his post” over and over in my head. I can’t remember if they were manning that outpost squad or platoon size. It really does not matter. If you are infantry, in a combat zone you depend on the other ten-twenty troops with you for your life. Do you like every guy in your squad? Hell no.
By his walking away he proved he is a immature, self serving asshole! He put the lives of his fellow troopers in jeopardy!
I don’t care one little bit about his supposed torture. He the one who took the walk!
Fuck him!
Anyone think that if Bergdahl had really tried to escape “about a dozen times”, that the Haqqani’s would have said, screw this, the skinny Amerikan isn’t worth the trouble, and used him for knife practice, or target practice?
Well, do we know at what point the White House started negotiating for him? If that opened early enough, that might have been their motivation.
Paid off for them, after all.
I have never heard of any other American soldier surviving capture by the enemy in
A-stan. Have you?
Back when America first sent troops into Afghanistan, both the British and Russians, who had experience fighting there, that if a soldier was being captured, he’d better save his last round for himself, blow his brains out, and go to “Fiddler’s Green”, rather than having to face what the Afghanis would do to him.
Oops, I goofed.
If I could edit that comment, I would insert the word, “advised”, between the words, “there”, and, “that”, in the second line of that comment.
It would have been easy. They could have said anything to explain his death, including that he was caught having hios way with another man’s goat.
Um…rumor has it he WAS the goat.
“Hanging’s too good for him! Burning’s too good for him! He should be torn into little bitsy pieces and buried alive!”
“STEEERRRNNN!!!”
If this deserter was in George Washington’s Army, he’d be in front of a firing squad the second he was arrested and desertion was proven.
Why can’t we go back to that?
You want to go back to Washington’s Army? The pay and benefits these days are only slightly better.
Coward… Check
Liar… Check
Hates America… Check
Sounds like he has a long political career to look forward to. It’s no wonder the so-called liberals love this guy.
Also these:
Idolized ex-Senator/former PFC in Idaho National Guard Larry “Wide Stance” Craig while growing up -Check.
Allowed to cheat off his sister while taking home schooling exams – Check.
Need I go on?
Well, at least The Emperor doesn’t lie only to us. It is reported that he has prevailed upon Qatar to extend the restriction imposed on the terrorists exchanged for Bergdahl. Without the extension, consistent with the deal unilaterally and secretly agreed to by Michele’s husband, they would be free to leave the country in days. So, B. Hussein has reneged. I wonder will they want Bergdahl back now: a deal is a deal.