Article 85 of the Uniform Code of Military Justice is the statutory military regulation which addresses desertion:
(c.) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.
It’s estimated that about 50,000 American soldiers deserted in the European theater of operations during World War II. Over 21,000 were sentenced to various punishments, 49 of which were death sentences. Only one, Private Eddie Slovik, was actually executed.
Walking away from a military post in a war zone will almost always assure that either a charge of AWOL or desertion will be filed against the missing soldier. The difference is not trivial. Using a bit of syllogistic logic, all desertions involve being AWOL, but all cases of AWOL are not desertions. AWOL is somewhat like playing hooky – absence without official or approved leave-taking. In cases of AWOL, the intention is to return to service. In cases of desertion there is no intention to return.
Notwithstanding the ominous sounding Article 85, its wartime application has been lenient. While 50,000 desertions is a small percentage of the total number of men under arms in the fight against Germany, less than half of the desertion charges led to punishment convictions. And only one of 49 death sentences was carried out. Ironically, Slovik did not desert a combat post; he never saw combat. He deserted before getting to the front lines by refusing to go there.
Now comes the case of Bowe Bergdahl. Nine fellow soldiers in his squad accuse him of deserting Afghan outpost duty in 2009. An Army investigation of his disappearance led to a conclusion similar to Bergdahl’s accusers albeit stopping short of calling him a deserter since that would require knowledge of his intent which exists only circumstantially at this point.
Nevertheless it’s surprising that the smartest man ever to be President would risk making a Rose Garden announcement that he had gotten a suspected deserter released from Taliban captivity. Flanked by Bergdahl’s parents, Obama apparently expected that he would be hailed for pulling off another gambit, second only to the killing of Osama bin Laden. What conceit to believe the American public would consider the ransom of a suspected deserter for five known killers a fair trade! As the details have leaked out, polls have shown 55% disapprove of the price paid for Bergdahl’s ransom (i.e. five top Taliban commanders) and close to three out of four want Bergdahl charged with a military crime if he is found guilty of desertion.
An official investigation of the Bergdahl betrayal has now been launched. Allegedly, it will collect facts and evidence to determine if a court martial trial on the merits is warranted, and if so, the charges and punishments that the prosecution will ask the court to consider – if it gets that far. I doubt that it will. Pardon my cynicism about anything this government does while Obama is President, but Bergdahl’s trade is a sideshow for political decision to release Gitmo prisoners. Nothing will come of the military’s Kabuki impersonation of a real investigation except to obfuscate the issues. Remember Benghazi? Obama jailed a guy on a trumped-up accusation that his video caused the Benghazi tragedy. Ever hear how his sideshow turned out?
There can be little doubt that Bergdahl deserted his post in wartime given the testimony of his fellow soldiers, Bergdahl’s own letters and emails, and information learned in searching for him. Bergdahl is not likely to be as accommodating as Eddie Slovik in admitting his desertion. In those pre-Miranda days, Slovik not only admitted in writing that he would desert, but he also complied with an order from a superior officer to write on the reverse side of his “confession” that he fully understood the gravity of his admission. He expected to go to prison, where he’d spent several stints as a civilian before being drafted into the Army. Three squares a day and a clean bed sure beat living – and quite possibly dying – at the front during the Battle of the Bulge in the worst winter Europe had seen in living memory. The last thing Slovik expected was a firing squad.
In today’s PC world even bad soldiers are treated well. Bergdahl will be treated with respect and deference as he “reintegrates” – whatever that means – after five years in captivity. He has been returned from an Army medical facility in Germany to one in San Antonio where his “reintegration” may take months of medical and psychological care. During that time he will be “off limits” for questioning by investigators who will be his legal adversaries should his case go forward.
Taxpayers will provide him the best legal defense money can buy and those lawyers will never allow him to testify as a witness if he comes to trial. It’s unlikely that he will even answer questions on the record for investigators. Lois Lerner, move over.
So circumstantial evidence is all that the military investigation can hope to get in explaining Bergdahl’s disappearance. If that wasn’t good enough to accuse him of desertion in 2009 it won’t be any better in 2014.
Here’s what the circumstantial evidence looks like.
In the last email sent in late June 2009 to his parents before deserting his post, Bergdahl wrote,
The future is too good to waste on lies. And life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong. I have seen their ideas and I am ashamed to even be american [sic]. The horror of the self-righteous arrogance that they thrive in. It is all revolting. … I am ashamed to be an american [sic]. And the title of US soldier is just the lie of fools… I am sorry for everything here. The horror that is america [sic] is disgusting…
Okay. Hardly the words of a patriot. Then he concluded his email with the following reference to his uniform, computer, books, and journals, which he was sending back home.
There are a few more boxes coming to you guys. Feel free to open them, and use them.
Why would he send his personal effects home unless he knew he wouldn’t need them anymore? Particularly when he had told a fellow trooper, “If this deployment is lame, I’m just going to walk off into the mountains of Pakistan.”
The evidence speaks to having planned to desert for some time. Bergdahl left at a pre-dawn hour when there was the least light. When he failed to muster for roll call the next morning, his gear was found in his tent neatly arranged – body armor, helmet, rifle, and web gear. He had taken with him his compass, diary, knife, water bottles, and digital camera.
The call for all hands on deck was sounded and Bergdahl was classified DUSTWUN (Duty Status: Whereabouts Unknown.) For the next 30 to 35 days the mission of his and other units focused on finding him, knowing that an American wandering around unarmed would fall into the hands of the Taliban – which indeed happened.
The search parties had serious misgivings about putting their lives at risk for a soldier who deserted his post. “The enemy knew we would be coming. While searching for him, ambushes and IEDs picked up tremendously,” one of Bergdahl’s squad members said. Within the first week of searching the Taliban set up ambushes by leaking false intelligence sightings to lure search parties. Teams rushed into a house that was rigged with explosives. A car was wired with a bomb. A suicide vest was set to explode in another area.
“We went to a school across a field,” Bergdahl’s squad leader said, “and a child told us that he saw him around 6 a.m. low-crawling toward the town, trying to find someone who could speak English.”
Traveling in an armored vehicle, a team entered a town. One of the troopers waved at the local onlookers and noticed that a child who waved back was promptly back-handed by his father. Taking that as a sign that Taliban were watching, the trooper screamed a warning just as an IED blew up under the vehicle breaking it apart. A fire fight followed.
The search for Bergdahl, who was quickly captured by the Taliban, would claim six American lives. As the Army’s intelligence developed in the search, his whereabouts became known on several occasions, even knowing how many Taliban were guarding him. But rescue missions were repeatedly scrubbed because commanders didn’t want to lose more men. Rescuing a soldier who walked away from his post before being captured would risk lives – too high a price to pay for a deserter.
While he was a prisoner, Bergdahl attempted to explain the rationale for his desertion in two letters made public last week in The Daily Beast. One letter is dated 2012 and the other was written in 2013. Here are the unedited excerpts.
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.
If this letter makes it to the U.S.A., tell those involved in the investigation that there are more sides to the cittuwation. Please tell D.C. to wait for all evadince to come in.
The cercomstance from the begaining of my time in Afghanistan from immedet top to bottom, where bad for troopers espeshly in my PLT. (Platoon.) Orders showed a high disconcer for safty of troopers in the field, and lacking clear minded, logical and commonsense thinking and understanding from the topsides. The cercomstance showed signs of going from bad into a nightmare for the men in the field. Unexeptable conditions for the men working and risking life every moment outside the wire …
Bergdahl was home-schooled by his parents. Apparently not very well.
Prior to his desertion, one of Bergdahl’s whiney emails to his parents evoked this response from his aging hippy father in an email subject line: “FOLLOW YOUR CONSCIENCE.”
That’s what Bergdahl did. He walked out on his fellow soldiers and got six of them killed. At least Private Eddie Slovik presented himself for arrest.
Bergdahl could have done the same.