By Tuesday afternoon, one thing was absolutely certain about the legal status of Bowe Bergdahl: he either will, or will not, be charged with desertion.
The news wires lit up this morning with reports from NBC News and Fox News that Bergdahl would face such charges, a decision reportedly leaked by Army insiders. However, the Army Times quotes Forces Command spokesman Paul Boyce saying that Bergdahl’s case is still under review, and no decision about charges has been made yet:
In a report Monday citing two anonymous military sources, retired Lt. Col. Tony Schaffer told Fox News’ “The O’Reilly Factor” that the Army plans to charge Bergdahl with desertion. Schaffer also told the outlet his sources confirmed to him that Bergdahl’s lawyer has been given a charge sheet.
No charge sheets were available Tuesday, and Boyce said he is unaware of any charge sheets being issued against Bergdahl, adding that the Fox News story “seems to be speculative in nature.” Bergdahl’s attorney Eugene Fidell declined to comment. NBC News, citing an anonymous senior defense official, is also reporting a desertion charge is coming, possibly within the week.
Gen. Mark Milley, commanding general of Forces Command, “is reviewing now the Army’s facts and findings to determine, impartially, any appropriate next steps and possible actions,” Boyce said.
Milley is “actively reviewing the case,” he said. “No decision’s been made.”
There is no timeline for when Milley must make a decision.
Milley received the Army’s investigation Dec. 22, Boyce said.
As the Army Times notes, the Bergdahl case “presents a challenge for the Army’s leadership, which has to decide whether to punish a soldier who spent five years as a prisoner of war or essentially overlook the allegations of misconduct that surrounded his disappearance.”
As the Army Times tactfully avoids noting, there will also be enormous pressure on officials to avoid issuing charges that will make President Obama’s already controversial deal to swap five Taliban honchos for Bergdahl look even worse. One reason the Monday report of forthcoming desertion charges got so much attention is that it ran contrary to cynical assumptions based on political reality. Such assumptions are usually safe bets these days. In his Fox News appearance, Schaffer said the debate over charging Bergdahl was “shaping up to be a titanic struggle behind the scenes.” That sounds highly plausible.
NBC News, for its part, is sticking by a report that “senior defense officials” told the network charges are coming, possibly by the end of the week:
According to the officials, the desertion charges would be based on allegations that Bergdahl abandoned his remote outpost in June 2009 to avoid hazardous duty or important service, which are grounds for charges of desertion under the Uniform Military Code of Justice, or UCMJ. According to one senior official, Bergdahl’s actions in Afghanistan go well beyond the lesser offense of AWOL, absent without leave, because he allegedly abandoned his post “in the middle of a combat zone, potentially putting the lives of his fellows soldiers at risk.”
The charges will apparently not allege that Bergdahl left with the intent never to return. Bergdahl was reportedly captured by the Haqqani terrorist network in Pakistan. He was released in a prisoner swap for five Taliban commanders held at Guantanamo Bay in May.
While a court martial could lead to imprisonment, defense and military officials tell NBC News it is likely Bergdahl would be given consideration for the 5 years he spent in captivity and be permitted to leave the Army with a “less than honorable discharge.” If accepted, Bergdahl would be denied as much as $300 thousand in back pay and bonuses, and reduced in rank to at least Private First Class, the rank he held when he disappeared from his outpost in Afghanistan.
Military.com returns fire with an even stronger statement from the Army that specifically denies the reports from both Fox and NBC by name: “The reporting from Fox News and NBC on Sgt. Bowe Bergdahl is patently false. To be clear there have been no actions or decisions on the Sgt. Bergdahl investigation. The investigation is still with the Commanding General of U.S. Army Forces Command who will determine appropriate action–which ranges from no further action to convening a court martial. We understand the public interest in this case and once a decision has been made, the Army will be open and transparent in this matter.”