Bowe Bergdahl's time as a Taliban captive likely to frame his defense

Army Sgt. Bowe Bergdahl, charged with desertion and 'misbehavior before the enemy,' is trying to avoid punishment by detailing his conduct and treatment as a POW in Afghanistan.

This image provided by IntelCenter in December 2010 shows a frame grab from a video released by the Taliban containing footage of Bowe Bergdahl, left.

In the case of US Army Sgt. Bowe Bergdahl, headed now into the military justice system, there are three defendants.

Sergeant Bergdahl himself, charged with desertion and “misbehavior before the enemy,” could receive a dishonorable discharge and as much as life in prison. His lawyers are trying to prevent that.

The Obama administration faces renewed criticism for gaining Bergdahl’s release in a prisoner swap for five Taliban detainees held at Guantánamo Bay, Cuba.

And in a way, the Army itself can be said to be on trial. Why did it accept Bergdahl when he already had washed out of Coast Guard basic training? And were there failures in his unit's command structure that allowed a young, apparently disaffected soldier to walk away from his post and into the arms of the enemy?

No doubt, Bergdahl himself is front and center in the case. In a statement provided as part of his initial defense documents made public this week, he describes the conditions he endured as a prisoner of war.

He was chained to a bed spread-eagle and blindfolded, Bergdahl wrote, experienced internal sickness, developed open wounds from being shackled, was beaten with a copper cable and rubber hose, and was kept in a cage.

“I was kept in constant isolation the entire 5 years, with little to no understanding of time, through periods of constant darkness, periods of constant light, and periods of completely random flickering light, and absolutely no understanding of anything that was happening beyond the door I was held behind,” he wrote. “Told I was going to be executed.... Told to kill myself.... Told I would have my nose and ears cut off as well as other parts of my body.”

Bergdahl says he tried to escape approximately 12 times. These attempts usually lasted no more than a few minutes. But once toward the end of his first year in captivity, Bergdahl says he managed to evade capture for “close to 9 days” without food and “only putrid water to drink” before his body “failed” and a “large Taliban searching group” found him.

His five-year story of capture and harsh treatment doesn’t explain or excuse why he left his post in the first place – he had left his weapon and other combat gear behind, and there is no evidence or assertion that Bergdahl was forcibly taken while on duty – and Bergdahl’s statement doesn’t address this.

But the statement does attempt to paint a picture of a POW who did not cooperate with his captors and who tried to escape – perhaps convincingly enough so that a military panel or judge concludes that he does not deserve further imprisonment.

Another portrait of Bergdahl has also emerged – that of a troubled young man who was discharged from the Coast Guard for psychological reasons before then being accepted by the Army at a time when recruiters were having a tough time meeting quotas to fight the wars in Iraq and Afghanistan, issuing waivers for some potential recruits with criminal records, health conditions, and other problems.

“A trove of Bergdahl’s writing – his handwritten journal along with essays, stories and e-mails – paint a portrait of a deeply complicated and fragile young man who was by his own account struggling to maintain his mental stability from the start of basic training until the moment he walked off his post in eastern Afghanistan in 2009,” The Washington Post reported shortly after Bergdahl’s release last year.

In a letter penned during his captivity, Bergdahl wrote of his unit that “leadership was lacking, if not non-existent.”

“The conditions were bad and looked to be getting worse for the men that where actuly the ones risking thier lives from attack,” he wrote (original spelling retained). “Orders showed a high disconcer for safty of troopers in the field, and lacking clear minded, logical and commonsense thinking and understanding ....”

Some soldiers who served in Afghanistan with Bergdahl have asserted that certain military assets – including helicopters, intelligence drones, and designated patrols – were diverted to look for Bergdahl, resulting in unnecessary US casualties.

But as Politico reported this week, “The Pentagon has said it can’t make any solid connection between searches for Bergdahl and troops killed or wounded in action, explaining that units were assigned to both search and conduct normal patrols or other operations.”

It seems unlikely, therefore, that charges related to that will be part of Bergdahl’s military court proceeding.

Bergdahl’s defense team includes three uniformed officers of the Judge Advocate General's Corps (JAG). The team is headed by civilian lawyer Eugene Fidell, a former JAG officer, co-founder of the National Institute of Military Justice, and a visiting lecturer at Yale Law School.

“We ask that all Americans continue to withhold judgment until the facts of this case emerge,” the defense team wrote in its statement this week.

As US involvement in the war in Afghanistan wound down last year, recovering the lone US POW became an increasingly urgent matter for the Obama administration. Sending the five Taliban members from the Guantánamo detention facility to Qatar seemed the last, best hope for getting Bergdahl home.

“At the heart of this whole situation, there’s still the decision to trade five Taliban detainees for a deserter, when there were in fact other options on the table. We’re aware of those options and frankly, the White House made a big mistake,” Rep. Duncan Hunter, a California Republican, told The Daily Beast. “And tying Bergdahl to an end-of-war effort was no less an error in judgment. The Army’s going to continue its process, which has taken way too long already, but it’s evident the administration screwed this up and nothing exists to justify the swap.”

The administration is sticking by its rationale for the prisoner swap.

"Was it worth it? Absolutely,” State Department spokeswoman Jen Psaki told Fox News. “We have a commitment to our men and women serving overseas, or in our military, defending our national security every day, that we will do everything we can to bring them home, and that's what we did in this case."

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