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Bowe Bergdahl’s motives were ‘pure,’ says lawyer of desertion charges

March 25, 2015 at 6:45 PM EDT
In 2009, U.S. Army Sgt. Bowe Bergdahl left his post in Afghanistan and was captured by the Taliban and held for five years until his release last May. Today he was formally charged with desertion and misbehavior before the enemy. Eugene Fidell, Bergdahl’s lawyer, talks to Judy Woodruff about the charges.
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JUDY WOODRUFF: Now more on the case of U.S. Sergeant Bowe Bergdahl.

He has been back in the U.S. since being released by the Taliban last year, in exchange for the transfer of five Guantanamo detainees to the nation of Qatar. Soon after that deal, some of the men who served with Bergdahl came forward and said they believed he deserted his post.

This afternoon at Fort Bragg, North Carolina, Army Colonel Daniel King announced charges against the soldier.

COL. DANIEL J. W. KING, U.S. Army Forces Command: The U.S. Army Forces Command has thoroughly reviewed the Army’s investigation surrounding Sergeant Robert Bowdrie Bergdahl’s 2009 disappearance in Afghanistan and formally charge Sergeant Bergdahl under the Armed Forces Uniform Code of Military Justice on March 25, 2015, with desertion with intent to shirk important or hazardous duty and misbehavior before the enemy by endangering the safety of a command unit or place, and has referred the case to an Article 32 preliminary hearing.

As you recall, Sergeant Bergdahl disappeared June 30, 2009, from combat outpost Mest Malak in Paktika Province, Afghanistan, and was subsequently captured. Regarding next steps, an Article 32 preliminary hearing is a legal procedure under the Uniform Code of Military Justice designed to determine whether there is sufficient evidence to merit a court-martial and is required before a case can be tried by a general court-martial.

JUDY WOODRUFF: And with me now is Eugene Fidell. He is Sergeant Bowe Bergdahl’s lawyer. He’s also a scholar in law at Yale University.

Eugene Fidell, welcome.

We know Sergeant Bergdahl got the news while he was at Fort Sam Houston, Texas. Was he expecting this charge?  What was his reaction?

EUGENE FIDELL, Sgt. Bowe Bergdahl’s lawyer: Well, I can’t tell you what his reaction was, because that would be breaching the attorney-client privilege.

But he was — what I can tell you, I think, in fairness, is that he’s philosophical about this entire controversy. You know, it’s lasted many, many months more, I think, than any of us anticipated. It’s something that he and all of us would like to see over. But, at the same time, we have to make sure that we’re protecting his legal rights.

JUDY WOODRUFF: Is he guilty?

(LAUGHTER)

EUGENE FIDELL: Judy, I’m not going to go into that. I have made a point over the time since I was asked to represent Sergeant Bergdahl of not attempting to try the merits of the case in the media. I’m going to hold to that rule, if you don’t mind.

JUDY WOODRUFF: Well, why did he leave his post?  What was he trying to do?

EUGENE FIDELL: I’m also not going into that, except to say that Major General Kenneth Dahl, who conducted the investigation, concluded that his motives were pure, that he was truthful in describing his motives and his conduct.

And I think that’s important. Now, the facts of the case, including my client’s motivation, will come out. They will emerge as this case now moves forward into a more public arena. Article 32 hearings are open to the public, except to the extent that there’s classified information involved. That shouldn’t be a problem in this case.

So, I think everyone is going to have a much, much better feel for him, for his conduct and really for what is the proper disposition of this case, given all the circumstances.

JUDY WOODRUFF: Now, we have been shown a letter you wrote to the Army, I understand, in which you said — among other things, you said: “This investigative report concludes that Bergdahl’s specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.”

What disturbing circumstances?

EUGENE FIDELL: Conditions in the unit, in the management of the unit and within the battalion of which his unit was a part. And he — we did put that in the letter, you’re quite right.

And his concern was that these matters were something that merited the attention of a general officer.

JUDY WOODRUFF: Then, why would he leave the post in order to bring it to an officer’s attention?

EUGENE FIDELL: That gets into a level of detail that, if you don’t mind, I’m going to defer commenting on.

JUDY WOODRUFF: You also said in the letter, I believe, that the general’s report concluded — and I guess you referred to this just a minute ago — that Bergdahl didn’t harbor an intent to remain away permanently. Can you shed light on how you know that?

EUGENE FIDELL: Oh, well, we have said it because that’s a fact. And I don’t think that’s inconsistent with what Major General Dahl concluded.

I would want to comment, if I may, we have not been permitted to examine the full report of General Dahl. All we got was the executive summary. There are, I believe, thousands of pages of exhibits. There is also a final action by a general at the Department of the Army that comments on the report and makes certain recommendations and directions.

We can’t really proceed without having the same kind of information that was supplied to General Milley. And that is going to be major issue. We have got to have the information on which General Dahl’s report was based. Other — without that, we cannot have a fair Article 32 hearing.

JUDY WOODRUFF: Besides desertion, Eugene Fidell, one of the other charges that was leveled today was misbehavior before the enemy. What does that mean and what does that mean for Sergeant Bergdahl?

EUGENE FIDELL: Well, it’s piling on, to be perfectly honest.

The Army — it’s a practice in military justice — and I served on active duty myself a long time ago — the practice of military prosecutors is to try to come up with as many ways of charging the same conduct and hope that something sticks.

The violation, it’s the second of two charges under Article 99 of the Uniform Code of Military Justice concerning misbehavior before the enemy, basically is another way of saying the same thing that was said in the charge under Article 85, which is desertion. I don’t know why it was thrown in, if it was to terrify us.

You know, we have all been around the block, my co-counsel and I from the U.S. Army. We will deal with that. It will present some legal issues, and we will deal with the legal issues.

JUDY WOODRUFF: Do you think the sergeant will get a fair hearing?

EUGENE FIDELL: I have to say that I have some concerns, in two dimensions.

The first is, his case has received a niagara, a niagara of vilification in the media and elsewhere. I’m not going to name names. Everybody knows who I’m talking about.

A number of people, many people have said the most dreadful things about my client without knowing the first thing about his actual conduct or his actual motivation. People have said he should be shot, he should hanged, he should be shot in the legs and then shot again, the most bizarre things.

And I do have some concern, given the amount of publicity that this case has generated over the time since he was liberated by President Obama that it will be very, very hard to assemble a jury, if the case ever gets to a court-martial. That’s the first point.

The second point is that this is an area where I think people’s emotions run very strong. And the case has been tangled up in some people’s views of the current president of the United States and various other controversies, over which Sergeant Bergdahl has had absolutely no control or influence.

People have used Sergeant Bergdahl as a punching bag and a lever to get at President Obama. That’s their privilege. We have a democratic society, but let’s — let’s make sure that we don’t let other extraneous political factors weigh in.

And, by the way, another factor that I — is definitely on my mind is whether there’s been back-channel communication that has tended to be adverse to my client. We are going to be looking into that.

JUDY WOODRUFF: Well, we will certainly be following all this.

Eugene Fidell, thank you.

EUGENE FIDELL: Thank you very much.

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