As Sgt. Bowe Bergdahl works through the process of reintegration after five years in captivity, he will, again and again, be asked to share his story in great detail with US military psychologists and intelligence analysts.
This sharing could ultimately incriminate him, however, if it turns out that he deserted his post. In the political turmoil surrounding the prisoner of war’s release, US military officials duly promised to bring Sergeant Bergdahl to justice if he is found to have violated tenets of the US military code of justice.
So what is the protocol in a situation like this? Was Bergdahl read his rights, for example? In short, should he get a lawyer? The question is especially pertinent given that the US military's plan for handling Bergdahl’s treatment may conflict with his rights as a soldier suspected of deserting his post, warns one expert on military justice.
Reintegration is typically conducted in phases, says a Department of Defense personnel recovery expert, briefing reporters at the Pentagon on condition of anonymity. These phases involve a number of medical assessments and lots of “time-sensitive” debriefings.
“We know, psychologically, that part of this process of healing is having these people tell their story repeatedly. And so we’re going to give them an opportunity to repeatedly go over and tell their story,” said a Survival, Evasion, Resistance, and Escape (SERE) psychologist, who also briefed the reporters.
Bergdahl, who has already begun the process of reintegration while in Germany, will be told that sharing this story repeatedly is critical if he is interested in helping his fellow soldiers stay safe.
“This is critical. DOD personnel generally have this brotherhood or sisterhood where they hang together. They know that we’re going to put people in harm’s way, and they want their story to somehow benefit their brothers in arms,” the military psychologist said. “And so they have this need to tell their story so we can learn lessons ... so that somehow somebody else doesn’t have to go through that same experience that they went through.”
During this process, Bergdahl could potentially share with the reintegration team – which includes psychologists, intelligence specialists, a chaplain, a public affairs official, a military lawyer, and others – information that could be used against him. So, will this information be used against him?
A DOD personnel recovery expert, who spoke on the same conditions at the same briefing, said he was no expert on legalities. “What I can tell you, though, is that the team is there to build trust and rapport with him.” There is “an offer of confidentiality made” when he is speaking about his survival, evasion and escape.
Does this mean, then, a reporter asked, that Bergdahl is protected by some sort of confidentiality agreement? “Are you suggesting that what he says during his recovery period is just between those people in the room?”
On this point, the personnel recovery official stepped back. “I mean, time with the chaplain if he wants to have just, you know, discussions with the chaplain. With individual teams, it’s also, like we said, situation-dependent.”
If during the course of telling the story of his experience “that brings a legal question to bear, then that’s when we’re going to consult with the legal person who’s going to give us guidance,” the official added. “And then, if they decide at that point to switch gears, then the reintegration will stop and then an investigation will begin.”
The problem is that if officials conducting the reintegration proceedings suspect that Bergdahl has committed an offense under the Uniformed Code of Military Justice (UCMJ) – such as, say, desertion – then they are “required to advise him of his legal rights” before the proceedings begin, says a former senior judge advocate general (JAG) and colonel in the US military, who spoke on condition of anonymity.
This must be done before the proceedings begin, not in the middle of them, the senior JAG adds. “If they don’t do it, then anything he says cannot be used against him.”
It may be the case that the reintegration specialists are not asking Bergdahl questions intended to incriminate him. Instead of asking “Why did you leave your post?” for example, they might ask, “What were you feeling the day you disappeared?”
However, if in the course of answering this question, Bergdahl says something like, “I felt really bad so I deserted my post,” there will be some question as to whether this spontaneous confession is admissible that would likely be argued in military court, says the JAG.
“In my judgment, there’s a high probability” that defense counsel for Bergdahl could argue that the “spontaneous confession” should not be admitted if he was not read his rights, because there could be a reasonable expectation that Bergdahl might incriminate himself, the JAG says.
There is also a large difference under the UCMJ between deserting one’s post and being absent without leave (AWOL). In order to charge desertion, US military officials must prove that Bergdahl “intended to stay away permanently” from his post.
Desertion in a time of war is punishable by death, while in peace time, it is a dishonorable discharge and five years in prison. An AWOL charge tends to depend on how long a soldier has been away. If he is found to be AWOL, Bergdahl’s time in captivity, the JAG hastened to add, would not be held against him.