Did 'Serial' get Bowe Bergdahl court-martialed?

To one former military lawyer, Bowe Bergdahl's statements to the 'Serial' podcast might have made it a 'no-brainer' for the Army to court-martial him Monday.

Voice Of Jihad Website/AP/File
Sgt. Bowe Bergdahl sits in a vehicle guarded by the Taliban in eastern Afghanistan in this 2014 photo. The Army announced that a court-martial against Sergeant Bergdahl will proceed – a week after he talked about his decision to leave his military base in Afghanistan with the 'Serial' podcast.

The Army announced Monday that it will recommend that the charges against Sgt. Bowe Bergdahl proceed to court-martial.

Sergeant Bergdahl, who was held captive by the Taliban for five years after he walked away from his combat outpost in Afghanistan in 2009, has been charged by the Army with desertion and “misbehavior before the enemy,” which could carry with it a life sentence should he be found guilty.

The chances of that happening have increased since his case was thrust into the spotlight last week, says a former United States military lawyer. The smash hit podcast “Serial” picked up Bergdahl’s story as the subject of its second season, which premiered Dec. 10.

Indeed, some of the details that Bergdahl provided on a recording could have pushed the Army over the edge in seeking a court-martial, says Eric Montalvo, a former lawyer for the Marine Corps. 

“There are certain basic rules in defense. The first and most important rule is that the client just needs to be quiet,” says Mr. Montalvo, who successfully represented Guantánamo Bay detainee Mohamed Jawad, who was ordered released after six years at Gitmo after a military commission ruled that his confession was coerced. 

“When [Berghdahl] says words to the effect of, ‘I did it because’ – well, you’ve just said you did it,” he adds. “We don’t care why you did it, buddy – the crime is that you did it.”

In the  podcast, Bergdahl is speaking on the telephone with Mark Boal, who wrote the screenplay for the film, “The Hurt Locker.”  With Bergdahl’s permission, Mr. Boal shared tapes of their conversations with “Serial.” 

Bergdahl explains to Boal that in leaving his small outpost, he was hoping to create what is known as a DUSTWUN (pronounced “dust one”), or Duty Status Whereabouts Unknown, which is the Army equivalent of the Navy’s “man overboard” distress call.  

As the podcast explains, Bergdahl was trying to create a crisis in order to call attention to what he saw as another crisis: bad leadership within his unit. Bergdahl's hope was that he would become such a person of interest that his leaders would have to listen to him. He could have an audience with a general and explain his plight, as the podcast puts it.

Bergdahl says he assumed he would go to jail, for a short time. “That’s what I figured they’d do,” he said. “I figured I’d stay in there until people got the situation cleared up.”

By cleared up, he meant he was “fully confident” that when the situation was investigated, “people would understand that I was right.” In other words, they, too, would become convinced that the bad leadership in his unit could have led to deaths of soldiers. 

“The idea was, I’d rather be sitting in Leavenworth [military prison] than standing over the body” of an Army buddy – a death, as he saw it, that could be caused by his failure to act.

While Army officials may urge compassion in the sentencing phase of his trial, Bergdahl will be facing a conviction based on his statements on the “Serial” podcast, says Montalvo. 

“If I were the prosecutor and I heard that, I’d be in no-brainer mode. All I have to do is roll that beautiful ... footage, and we’re done. He had a plan, and he executed on that plan.”

It was a decision Bergdahl came to regret quickly.

Just 20 minutes after leaving his outpost, “I’m going, ‘Good grief, I’m in over my head,’ ” he told Boal.

Part of that was the realization that he was going to be in a great deal of trouble, Bergdahl admitted. He was thinking, “they’re going to hit me with everything they had. I knew that was going to happen, but suddenly, it really starts to sink in that I’ve really done something bad – well, not bad, but really done something serious.”

He had five years in Taliban captivity to contemplate it. 

It is still “quite possible” that the Army could decide to discharge Bergdahl before his case reaches a court-martial, says retired Maj. Gen. Charles Dunlap, who previously served as deputy judge advocate general for the US Air Force. 

“There are aspects of the case that may be unflattering to the Army, and Bergdahl did apparently suffer in captivity,” says Mr. Dunlap, now a professor at Duke Law School. 

“I could also see the Army continuing to trial,” he adds. “Soldiers need to see that justice is being done – whatever that may be here – and having as many facts as possible can help achieve that aim.” 

You've read  of  free articles. Subscribe to continue.
Real news can be honest, hopeful, credible, constructive.
What is the Monitor difference? Tackling the tough headlines – with humanity. Listening to sources – with respect. Seeing the story that others are missing by reporting what so often gets overlooked: the values that connect us. That’s Monitor reporting – news that changes how you see the world.

Dear Reader,

About a year ago, I happened upon this statement about the Monitor in the Harvard Business Review – under the charming heading of “do things that don’t interest you”:

“Many things that end up” being meaningful, writes social scientist Joseph Grenny, “have come from conference workshops, articles, or online videos that began as a chore and ended with an insight. My work in Kenya, for example, was heavily influenced by a Christian Science Monitor article I had forced myself to read 10 years earlier. Sometimes, we call things ‘boring’ simply because they lie outside the box we are currently in.”

If you were to come up with a punchline to a joke about the Monitor, that would probably be it. We’re seen as being global, fair, insightful, and perhaps a bit too earnest. We’re the bran muffin of journalism.

But you know what? We change lives. And I’m going to argue that we change lives precisely because we force open that too-small box that most human beings think they live in.

The Monitor is a peculiar little publication that’s hard for the world to figure out. We’re run by a church, but we’re not only for church members and we’re not about converting people. We’re known as being fair even as the world becomes as polarized as at any time since the newspaper’s founding in 1908.

We have a mission beyond circulation, we want to bridge divides. We’re about kicking down the door of thought everywhere and saying, “You are bigger and more capable than you realize. And we can prove it.”

If you’re looking for bran muffin journalism, you can subscribe to the Monitor for $15. You’ll get the Monitor Weekly magazine, the Monitor Daily email, and unlimited access to CSMonitor.com.

QR Code to Did 'Serial' get Bowe Bergdahl court-martialed?
Read this article in
QR Code to Subscription page
Start your subscription today