Berry: Bergdahl Sentence a Blow to Confidence in Military Justice System

Bowe Bergdahl deserves to go to prison for his crimes. The fact that he won’t spend a day in confinement, however, while decorated officers who stand on ethical principles will, weakens our military and casts doubt on the fairness of our military justice system.

Most Americans are at least vaguely familiar with the basic facts of the Bowe Bergdahl ordeal. But what has left many Americans bewildered is the sentence of no confinement for Bergdahl, seemingly out of sync with sentences handed down for similar or lesser crimes, including a controversial sentence issued against a Marine Corps general this week.

On June 30, 2009, Army Sergeant Bowe Bergdahl left his post in Paktika Province in eastern Afghanistan. The Taliban captured Bergdahl and he remained in their custody until his release — brokered via the exchange of five Guantánamo Bay detainees — on May 31, 2014. Three days prior to leaving his post, Bergdahl sent his father, Bob Bergdahl, an e-mail expressing his frustration with the Army and that he was “ashamed to be an American.” Nevertheless, the Army launched a substantial rescue mission that included aircraft, helicopters, and even the elite Navy SEALs. It has been well documented that members of the rescue mission suffered severe physical and psychological wounds in their attempt to rescue Bergdahl.

Shortly after Bergdahl’s return to duty, the Army began investigating the circumstances surrounding Bergdahl’s actions. In March of 2015, the Army announced it had charged Sergeant Bergdahl with two military offenses: desertion with intent to shirk important or hazardous duty and misbehavior before the enemy.

The latter charge carries the more severe maximum penalty of life in prison. The prosecution sought a sentence that included at least fourteen years of confinement, presumably at Fort Leavenworth. Bergdahl’s defense lawyers asked for no confinement, arguing that Bergdahl had suffered enough at the hands of his captors. Notably, prior to being sentenced, Bergdahl suggested the Taliban treated him better than the Army.

On November 3, after a well-publicized court-martial at which Bergdahl pleaded guilty to both charges, the military judge, Army Colonel Jeffery Nance, sentenced Bergdahl to be reduced to the rank of private, forfeit his pay, and be dishonorably discharged. But in a stunning development, Colonel Nance did not sentence Bergdahl to any confinement. Many wonder why and what happens from here. Only Colonel Nance can answer the former question, but I can certainly answer the latter.

Under the military justice system, the officer who convened the court-martial — in Bergdahl’s case, a four-star general — must review the proceedings and the sentence. Among his other powers this officer, called a “convening authority,” can reduce or even disapprove all or part of an adjudged sentence. Although Bergdahl has the right to appeal his conviction, his sentence, or both, that seems highly unlikely given his apparent windfall. But on the other side, a frustrated Army prosecutor cannot appeal Colonel Nance’s sentence decision. And it is Colonel Nance’s decision to award no confinement that has military experts perplexed.

In 2012, U.S. Air Force Airman First Class Jessica McFadden was convicted of absence without leave and desertion, among other minor offenses. An Air Force court-martial sentenced her to reduction in rank, forfeitures, a fine, to be punitively discharged, and two years of confinement. In 2009, Army Specialist Mervyn Oliver was convicted of the sole offense desertion. An Army court-martial sentenced him to six months of confinement. And perhaps most shocking is the disparity between Bergdahl’s sentence and the one meted out by an Air Force Colonel against a decorated Marine Corps General this week, who was sentenced to three weeks of confinement after being found in contempt of court.

Let’s review a quick recap of what transpired. Marine Corps Brigadier General John Baker, the top defense attorney at the Guantánamo Bay military commissions and the Marine Corps’ second highest-ranking attorney, allowed three civilian defense attorneys under his supervision to be released from their cases after they presented classified evidence of unethical conduct by the prosecution. The defense attorneys complained that the prosecution’s actions prevented them from being able to ethically perform their duties, so General Baker authorized their release.

The judge, Air Force Colonel Vance Spath, ordered General Baker to testify about his decision. Baker refused, defending his subordinates’ ethical obligations and arguing the military commissions — created by Congress to prosecute terrorists — lack jurisdiction over him as a U.S. citizen and active duty Marine officer. Colonel Spath found General Baker in contempt and sentenced him to three weeks in confinement.

Thus, within the same week, one military judge sentenced a decorated and highly respected Marine Corps general to three weeks of confinement while a different military judge allowed Army deserter Bowe Bergdahl — whose rescue effort resulted in the death or serious injury of his fellow Soldiers and the release of five Guantánamo Bay detainees — to escape a single day of confinement.

Bergdahl’s sentence does little to inspire confidence in our military justice system. His actions resulted in severe injury or death for his fellow Soldiers, not to mention the resources expended in the effort to rescue and return him. When soldiers learn that their buddies were killed or maimed attempting to rescue a deserter who was “ashamed” to be one of them, and who complained that the same group who used commercial airliners as weapons of mass terror treated him better than did the Army, they inevitably lose faith and confidence in the system.

President Trump, as Commander in Chief, was understandably disturbed by Bergdahl’s sentence, calling it a “disgrace to our Country and to our Military.” President Trump’s reaction stands in stark contrast to his predecessor. Recall that President Barack Obama’s national security advisor, Susan E. Rice, declared that Bergdahl had served with “honor and distinction.” And let’s not forget that, in the waning hours of his presidency, President Obama commuted the thirty-five year sentence Chelsea Manning, formerly known as Bradley, was serving for stealing and then delivering hundreds of thousands of classified files to Wikileaks, endangering U.S. military troops and operations in Iraq and Afghanistan.

At a time when America seems to be divided along partisan lines on just about every conceivable issue, we should be able to agree on the need for a strong, confident military. Bowe Bergdahl’s actions before, during, and after he walked off his post in 2009 caused tangible harm. He deserves to be punished for his actions and his adjudged sentence sends the wrong message to America and to the military.

Mike Berry is a leading expert in military law. He spent over 7 years on active duty as a lawyer in the Marine Corps, including time spent as an instructor at the U.S. Naval Academy. Berry has represented military clients in high-profile cases involving war crimes, homicide, and espionage, among others.