Should Sergeant Bowe Bergdahl be Vilified?

Posted by Patrick McLain | Jan 15, 2016 | 0 Comments

This past Tuesday 12 January, U.S. Army Sergeant Bowe Bergdahl sat attentive before military judge Colonel Jeffery Nance as the latter presided over the second Article 39a, or pretrial, session in Sergeant Bergdahl's pending general court-martial. Judge Nance reviewed the schedule to trial in August with counsel for the government and defense, and he heard their arguments about the proper handling of classified information that might be offered as evidence in that trial. Civilian observers, whether professional journalists or those interested citizens keeping watch on the proceedings online, are still mystified about court-martial procedures, even though courts-martial are much more transparent and orderly than their civilian equivalent criminal justice trials.

For a short discussion on the procedure in the Sergeant Bergdahl case, you can listen here: 
http://www.msnbc.com/msnbc/watch/serial-podcast-will-taint-bergdahl-trial-599917123832

What many are surprised to learn is the wide range of prosecutorial discretion given to a non-attorney, Sergeant Bergdahl's commanding general, in deciding how the charges of desertion and misbehavior before the enemy were to be handled. The Army had ordered a senior officer, Major General Kenneth Dahl, to investigate the circumstances of Sergeant Bergdahl's conduct that led to his capture by the Taliban in Afghanistan and recovery in a prisoner swap five years later. Major General Dahl spent 59 days investigating, including a day-and-a-half with Sergeant Bergdahl himself, and the general concluded that neither jail time nor a court-martial was an appropriate response to Sergeant Bergdahl's conduct.

Like all who have come to know Sergeant Bergdahl, Major General Dahl came to respect the young NCO, and his actions were found to be misguided but motivated by a strong moral sense and a concern for the welfare of his unit. The vilification of Sergeant Bergdahl by politicians looking for an easy target to bolster their own lack of military experience, and even military personnel who have never bothered to garner the facts of the case, shows how depraved public discourse has become. Fortunately, Sergeant Bergdahl has the benefit of a forum, the military justice system, that still has the ability to work out a fair and just resolution to the allegations against him.

About the Author

Patrick McLain

Military Criminal Defense Attorney Patrick J. McLain Attorney Patrick J. McLain is a retired military judge in the Marine Corps. He has practiced military law and criminal defense since 1990 where his first jury trials were held in Saudi Arabia deserts during both operations Desert Storm and D...

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