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On Point

Bowe Bergdahl Behaves Before the Enemy


by Austin Bay
December 15, 2015

U.S. Army Sgt. Bowe Bergdahl will stand trial on charges of desertion and misbehavior before the enemy.

U.S. Army Gen. Robert Abrams' decision to try Bergdahl on these serious charges has raised a media firestorm. That is understandable for two reasons.

Military law is not just a disciplinary constraint but also a tool in preparing for combat and, once the fight begins, defeating the enemy. Many loudmouths who have never served in the military fail to grasp this fact. I'll expand on this in a moment.

The other reason is President Barack Obama's politicization of Bergdahl's release.

Let's deal with Obama first. A president brings instant and enormous media visibility to an issue. Obama, however, inevitably uses an event as a media opportunity to bash political adversaries, even when bashing may damage essential U.S. institutions. In the case of Bergdahl, he put the fundamentals of military justice at risk.

Bergdahl committed his alleged offenses in June 2009 while serving at Combat Outpost Mest-Malak in Afghanistan's Paktika province. He left his unit, and Taliban fighters captured him. In May 2014, President Obama exchanged five "high-risk" Afghan Taliban terrorists -- the Taliban Five -- for Bergdahl. The terrorists were held in Guantanamo Bay's prison.

Obama welcomed Bergdahl at a White House ceremony, which Bergdahl's parents attended. Obama didn't quite treat Bergdahl as a hero -- thank goodness -- but his meta-message was essentially: "Hey, Bowe's back. His service is honorable  enough to rate moving five more prisoners from George W. Bush's Gitmo. So, press corps, can the messy questions."

As I scanned the ceremony's transcript, I wanted to ask the president: "Excuse me, sir. If Bergdahl deserves trial, have you improperly prejudiced the military justice system, which almost always involves investigations by military officers and decisions by commanders to hold a court-martial? Have you tampered with potential military jurors? As commander in chief, you have an institutional responsibility here. You know, sir, good order and discipline?"

Which segues back to the alleged crimes. Desertion is a charge familiar to the general public. Hollywood movies get the gist; the soldier left his duty post and did not intend to return. Misbehavior before the enemy is an obscure charge, one associated with complex circumstances that civilians will rarely encounter. Both charges are serious. Desertion in time of war is punishable by death. For good military reasons, both judicial and strategic, misbehavior before the enemy is punishable by life in prison.

You can find these charges in the Uniform Code of Military Justice, which governs U.S. service members. The military has its own code because military service involves harsh preparation, extraordinary rigors and enormous individual, group and national risks. Combat demands discipline. In violent, chaotic and dangerous circumstances, soldiers must immediately respond to orders and carry them out.

The UCMJ is a disciplinary tool, one vital to Gen. Abrams. Abrams commands U.S. Army Forces Command. He knows that in order to protect the U.S. Constitution, service members give up many of their individual rights. That's why he respects his own soldiers -- his good, disciplined soldiers.

At FORSCOM, Abrams' job is to prepare the Army to win wars. As a person, Bergdahl is a loser. As a soldier, he is a war loser -- a danger to his fellow soldiers and his unit.

And Abrams knows it.

"Misbehavior before the enemy" includes endangering the safety of fellow soldiers. The Army alleges that Bergdahl endangered the safety of his unit "by walking away and causing the military to launch 'search and recovery operations.'"

Let's grant that Bergdahl suffered during his five years as a Taliban captive. However, his la-di-da stroll from his duty station put the lives of scores of American soldiers at risk.

Now he has his day in court. Good. Let a jury decide his fate. He's already had his day in the Rose Garden.

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