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Will Politics Bury Sgt. Bowe Bergdahl?

The returned soldier's legal proceedings are beset by the red meat rhetoric of GOP primary season.

“We get a traitor, a no-good, rotten traitor like Bergdahl,” said Donald Trump, the current frontrunner of the GOP primary pack. “And they get five killers that they most wanted in the whole world, who are right now back on the battlefield, trying to kill everybody, including us. Okay? What kind of a deal is this?”

The case of Bowe Bergdahl, the Army sergeant retrieved in a prisoner exchange with the Taliban last year and subsequently brought up on desertion charges, has never lacked for heated rhetoric, but the coincidence of his case’s progress with the 2016 primary season has dramatically raised the volume. While Jack Nicholson’s character in the film “A Few Good Men” may have shouted “You can’t handle the truth!” the question in the Berghdahl case is whether anyone will be able to hear the truth over the noise.

Contrary to Trump’s declarations, Bergdahl has not yet been convicted of anything, much less treason, and the five prisoners (at least four of whom were political, moderate Taliban never accused of direct violence) swapped for him back in June are still on travel restriction and nowhere near “the battlefield.” Nevertheless, Trump knows such red meat, spoiled as it may be, is the coin of the realm with grassroots audiences.

Sen. Ted Cruz suggested that Bergdahl himself should feel guilty about the deal that brought him home, while Sen. Marco Rubio told Fox News back in February, “We said at the time that that swap, in and of itself, would now put a price tag on the head of every American abroad. In fact, ISIL, as we speak, is actively looking for more Westerners to kidnap, particularly Americans.”

“The story is right-wing crack,” wrote Michael Tomasky in June 2014, after he received his own tsunami of Twitter-hate for defending Bergdahl’s rescue. “And sure enough, Republicans are hitting the pipe big time.”

It is this kind of hyper-politicized atmosphere that Bergdahl’s supporters fear the most, moving into an Article 32 hearing in September to determine whether he will be tried by Court Martial.

“Due to the notoriety of this case, getting a fair trial will be difficult,” mused (Ret.) Lt. Col. Lorraine Bartlett, who served as a defense attorney with the U.S. Military Commissions at Guantanamo Bay. She senses the public is clamoring for a “red meat trial” and a Court Martial would definitely give them one. She suggests his team might plea to a lesser AWOL charge.

(Ret.) Maj. Todd Pierce, who worked with Bartlett on the commissions, says a Court Martial could taint the well further than anyone expects. “I think the militaristic Republican candidates, which means all of them with maybe only one exception, will exploit this case for the maximum political gain,” he said, “regardless of the cost to national interests. One of those costs would be to make it impossible for successful negotiations favorable to the U.S. and Afghanistan in resolving the conflict in Afghanistan.”

Bergdahl’s legal team includes civilian attorney Eugene Fidell, who teaches at Yale Law School and has a strong background in military law and litigation. He has openly questioned whether his client could get an impartial jury of his peers under the current circumstances. “His case has received a Niagara, a Niagara of vilification in the media and elsewhere,” he told PBS Newshour.

Just two weeks ago, outfits like Breitbart.com were giddily announcing “Bowe Bergdahl caught in NorCal pot farm raid.” The coverage all but suggested that not only was Bergdahl a comrade-killing commie, but a lawbreaking stoner to boot. The not-so-sexy truth was that he unexpectedly dropped by to see a friend at a Mendocino County farm that day, and was not connected to, nor detained during, the raid. The police, however, sent word to the Army, and then ran to the press.

“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,” Fidell said on PBS. “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.”

Fidell spoke briefly with TAC last week about the upcoming hearing, which will take place on Sept. 17 at Fort Sam Houston in San Antonio Texas.

Bergdahl was formally charged in March with one count of desertion and one count of misbehavior before the enemy, specifically, that he endangered his fellow soldiers through “disobedience, neglect, or intentional misconduct.” The former carries with it a possible five-year sentence, the later upwards of life in a military prison or even the death penalty. Similar to a civilian Grand Jury, the September hearing could influence the disposition of Bergdahl’s case.

After listening to testimony from witnesses on both sides and reviewing evidence, the investigating officer, a JAG corps lieutenant colonel, will recommend to a non-lawyer officer how the charges should be disposed. That officer will, in turn, take the nonbinding recommendation to the Commander of U.S. Army Forces. Currently, that four-star is Gen. Mark Milley, who brought the initial charges against Bergdahl.

The hearing may result in a recommendation other than General Court-Martial: a Special Court-Martial, a recommendation that charges be amended or added, alternative dispositions such as administrative discharge, resignation, or non-judicial punishment. They could recommend the case be dropped altogether. Experts say the General Court Martial would be the harshest route for Bergdahl in that it would be like trying him on felony charges, where he’d be subjected to a jury of his peers.

“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,” Fidell told PBS.

Meanwhile, Bergdahl’s team has attempted, so far unsuccessfully, to get Milley removed from the case. The four-star has been nominated as Army Chief of Staff, and the team feels that the politicized nature of the case will have an undue influence on Milley’s ability to provide impartial judgment. Milley sat before the Senate Armed Services Committee in July and his confirmation is pending before the full Senate (which could come before the hearing anyway). The SASC is headed by Sen. John McCain, who like the other Republican members of the committee, has been publicly critical of the exchange of Guantanamo Bay prisoners for Bergdahl, calling them “hard-core jihadists who were responsible for 9/11.”

McCain is hardly the lone or the loudest voice in the din that followed Bergdahl’s release in June 2014. Criticism has been dogging Bergdahl since 2009 among soldiers who insisted he deserted. But after he was rescued, members of Bergdahl’s former unit began their ubiquitous rounds in the media, accusing Bergdahl of causing the deaths of six fellow soldiers who were looking for him in the weeks after he vanished. That their myriad appearances on television, particularly Fox News, appear to have been initially orchestrated by a Republican strategist is a detail lost on nearly everyone but Bergdahl’s most dogged defenders.

Things got out of hand quickly when when it was revealed that he was swapped in exchange for five Taliban detainees and that Congress wasn’t consulted ahead of time. Meanwhile, critics began revisiting an earlier, sympathetic profile by the late Michael Hastings in Rolling Stone that painted Bergdahl as idealistic and disillusioned with the war. Bergdahl not only became a pincushion for all the Obama hatred on the right, but a scapegoat among pro-war conservatives for everything wrong with the war under the current administration.

“The nation craves a Dolchstoßlegende, and without an active antiwar movement or a critical media, this is a tough itch to scratch. With Bowe Bergdahl, our war-lovers have a chance to blame somebody, which will add one more layer of ignorance and misunderstanding to how we think and talk about the Afghan War,” said Chase Madar, author of The Passion of Bradley Manning.

Veteran Nathan Bradley Bethea upped the ante when he wrote that, in addition to the six soldiers in Bergdahl’s unit, two more from another one were killed in an operation near the Afghanistan/Pakistan border because, he contends, critical intelligence resources were diverted to the search for Bergdahl. No one seems to remember, though, that Bethea also said he forgave Bergdahl, and acknowledged the horror he lived in for five years. He also guessed the Army would want to avoid a Court-Martial:

I believe that Bergdahl also deserves sympathy, but he has much to answer for, some of which is far more damning than simply having walked off…

…Reprimanding him might yield horrible press for the Army, making our longest war even less popular than it is today. Retrieving him at least reminds soldiers that we will never abandon them to their fates, right or wrong. In light of the propaganda value, I do not expect the Department of Defense to punish Bergdahl.

The White House was excoriated for appearing with Bergdahl’s parents in the Rose Garden to sing Bergdahl’s praises when he was finally released. National Security advisor Susan Rice drew fire for saying Bergdahl served with “honor and distinction,” a comment repeated ad nauseam by the anti-Bergdahl blogosphere almost as reason enough to let him rot in jail for the rest of his life.

Fidell’s mission is not to let that happen. In light of that task, he is doing very little press these days. He was firm in not speaking with TAC about any of the details of the case. Instead, Fidell pointed to a lengthy letter he wrote to Milley before Bergdahl was charged. It liberally quotes an unreleased report by investigating officer Maj. Gen. Kenneth Dahl and is informative about where the defense might go. It also teases out some conclusions by Dahl that may get in the way of the snowballing narrative threatening to collide with his client in September.

Among those conclusions number a few very important points: that Bergdahl did not go seeking the Taliban and did not harbor an intent to remain away permanently, which could set up a case of AWOL as opposed to desertion. The report also says, according to Fidell, that there is no evidence that any soldier died searching for him, and that Bergdahl’s specific intent was to bring what he thought were “disturbing circumstances” to the attention of a high-ranking officer.

That last point suggests there is much more to be revealed about the day Bergdahl left his post. Whether “the truth” will have a whit of a chance of surviving in this political atmosphere remains to be seen. For now, experts say, the Army has stayed above the fray of the lynch mob. Let’s just hope it stays there.

Kelley Beaucar Vlahos is a Washington, D.C.-based freelance reporter and TAC contributing editor. Follow her on Twitter.