NATION

Bergdahl is warned his statements could be used in his prosecution

Sgt. Bowe Bergdahl could be charged with being absent without leave

Under investigation for possible desertion, Sgt. Bowe Bergdahl has been warned that incriminating statements he makes as he undergoes treatment after nearly five years in Taliban captivity could be used to prosecute him, Army officials said Wednesday.

Bergdahl has not been formally told that he can have a defense attorney and other rights, although his disappearance from a base in eastern Afghanistan in 2009 is under investigation, said the officials, who asked that their names not be disclosed in discussing Bergdahl's case with reporters.

The doctors and therapists assisting Bergdahl in Texas are focusing on the five years he spent in captivity, not his disappearance. Army officials said there was no indication that Bergdahl was guilty of any misconduct while he was held captive, so there was no reason yet to inform him of his legal rights.

He has not made any incriminating statements or asked for a lawyer, the officials said.

Bergdahl was released May 31 as part of a controversial prisoner exchange with the Taliban that freed five Afghan prisoners who were being held at the U.S. military prison at Guantanamo Bay, Cuba.

A previous Army investigation in 2009, which has not been made public, concluded that Bergdahl left his post without permission after growing disenchanted with the Army and the war in Afghanistan, according to officials familiar with the findings. Bergdahl has said in a video released by his captors that he was taken prisoner after falling behind on a patrol.

Bergdahl has not been interviewed yet by the two-star general who is conducting the investigation into his disappearance, the officials said. The 28-year-old sergeant could be charged with being absent without leave, or desertion.

Desertion cases are typically determined by circumstantial evidence, according to Eugene Fidell, who teaches military justice at Yale Law School. He said a potential desertion case could be made against Bergdahl.

"The fact is that he left his unit, left his gear, sent some stuff to his home. That we know," Fidell said. "And he had expressed some sympathy for the plight of the Afghan people."

If he is convicted, Bergdahl could face a dishonorable discharge or imprisonment for up to five years.

marianne.levine@latimes.com

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