For an administration whose theory of conducting foreign policy is “don’t do stupid stuff,” the Bergdahl swap last week was stupidity of epic proportions.
The administration’s narrative about what they did and why fell apart almost as soon as the swap was announced. They act as though they can control the narrative: in the age of alternative media, they can’t. Yet while many of the facts came out almost simultaneously with the announcement of it, some of the discussion has not been particularly helpful.
Terms have been thrown around like so much loose change: “desertion,” “treason” and even “high treason,” a term which only exists in The Game of Thrones. What is Sgt. Bergdahl really guilty of?
As a member of the U.S. military, Bergdahl is subject to the Uniform Code of Military Justice (UCMJ)—a disciplinary code unique to the military. Public reports say that he left his post—a serious enough offense in its own right—in order to go looking to join the Taliban. What kind of offense is that?
Under the UCMJ, there are three articles that could apply: Article 85, Desertion; Article 86, Absent without leave (AWOL); and Article 87, Missing Movement. Article 87 wouldn’t apply. Missing Movement (or, as military members humorously refer to it, “missing a movement”) is when you’re supposed to board the plane for Afghanistan, you’re late and the plane takes off without you. In the civilian world you just catch the next plane. In the military, you are held to higher standards of duty.
Article 86 happens when you go somewhere you’re not supposed to but you intend to come back. Let’s say you live in a camp in Afghanistan. Without permission, you decide to leave the base to go sightseeing. Two days later you come back. You’ve been AWOL.
Desertion under Article 85 is the most serious offense. That’s when you don’t intend to come back.
Determining intent can be a tricky process. Sgt. Bergdahl reportedly left notes behind which shed light on his intentions. The Army has already done an investigation under Army Regulation 15-6, which is something like a grand jury investigation in terms of gathering facts and making a case for action. The results of that investigation have not been made public.
Still, it’s not hard to make an educated guess. Going missing in Afghanistan is not like running off to Paris to party all night. Afghanistan is hostile territory. The U.S. Army needs to court martial Sgt. Bergdahl; indeed, Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey said, “Our Army’s leaders will not look away from misconduct if it occurred.”
Having made the investigation, proceeding to court martial is the next logical step.
Regardless of the findings of the initial investigation, the Army needed to find him and bring him back if only because desertion in time of war is an even more serious offense. It is a capital offense. In modern times only one soldier, Pvt. Eddie Slovak, was executed for desertion. After conviction, his request for clemency was denied by Gen. Dwight D. Eisenhower, who confirmed the execution order on 23 December 1944, noting that it was necessary to discourage further desertions.
All of this puts the lie to the administrations’ claim that they were simply seeking the return of an American “POW.”
Is Sgt. Bergdahl a traitor? Some sources close to the scene in 2009 reported more accurate attacks on American forces in the region of Bergdahl’s unit following his disappearance. This certainly suggests that his captors may have extracted intelligence from him. Was it done under torture or by willing cooperation? This again is why Bergdahl needs a court martial to bring out all the facts.
Military people live by a Code of Conduct that says they will not cooperate with the enemy no matter what. Sen. John McCain cannot raise his arms above the horizontal because of beatings he took by the North Vietnamese; many POWs endured worse. We don’t yet know what Sgt. Bergdahl did while in captivity or why. It is certain, however, that he will be judged by the Code of Conduct and the UCMJ, not by civilian standards.
The definition of treason in the Constitution is narrow and specific and purposefully so. Article III Section 3 defines: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
This was done because the kings of England had widely used treason as a method to silence and even kill their opponents. Section 3 continues: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
The word “treason” does not appear in the UCMJ. Desertion carries the death penalty. That’s punishment enough.
Commentators have described the president’s swap of Bergdahl for five of the worst terrorists at Guantanamo as treasonable. Regardless of what Bergdahl may have done, those actions are his alone. The president will need to be judged by his actions: whether freeing the five terrorists consists of levying war against the United States or by adhering to our enemies, giving them aid and comfort.
That’s an awfully high bar to get over: especially when the actions of the president and his administration can be fully ascribed to doing stupid stuff.