Army Sgt. Bowe Bergdahl, who was captured by Taliban forces in Afghanistan in 2009 and returned to the United States in a controversial prisoner swap last year, has been charged with desertion and “misbehavior before the enemy,” the Army said Wednesday.
Bergdahl's defense lawyer responded with a statement asking Americans to "continue to withhold judgment until the facts of this case emerge."
Because of the political controversy generated by the prisoner swap, Bergdahl's case has been surrounded by a "lynch mob atmosphere" in which he has been "vilified," defense attorney Eugene R. Fidell said in a letter to the military official handling the case.
The intense response to the case raises questions about whether Bergdahl can receive a fair trial, Fidell said. He noted that the military has been so concerned about Bergdahl's safety that he is required to have two escorts whenever he leaves the base in Texas where he has been living "to prevent third parties from injuring him."
Bergdahl vanished on June 30, 2009, when he allegedly walked away from his unit after he expressed misgivings about the military's role in Afghanistan. He was captured by the Taliban and held by members of the Haqqani network, which operates in Pakistan and Afghanistan, for nearly five years.
Bergdahl, 28, will face a hearing in the case next month to determine if enough evidence exists to warrant a court martial. The hearing, expected to be at a military base in San Antonio, Texas, could lead to a trial or to the dismissal of the charges, the Army statement said.
There has been no discussion so far about a plea, Fidell said.
The Army's decision to charge Bergdahl with desertion, rather than the lesser charge of being absent without leave, makes the case far more serious, especially because the alleged offense occurred in a combat zone.
Under the Uniform Code of Military Justice, a conviction for desertion can result in a sentence of up to five years in prison, forfeiture of pay and dishonorable discharge, the Army said.
In theory, a soldier charged with desertion could face the death penalty, but Bergdahl’s case has not been deemed a capital case, said James Hinnant, an Army spokesman.
The other charge, misbehavior before the enemy, can be brought against a soldier if he or she is alleged to have run away, abandoned military property or “through disobedience, neglect or intentional misconduct endanger[ed] the safety” of a military unit. It carries a potential sentence of life in prison.
The military mounted a massive search for Bergdahl in the weeks after he disappeared, a search that some members of his unit have said put the lives of other soldiers at risk.
The decision to prosecute Bergdahl was made by Gen. Mark Milley, head of Army Forces Command at Fort Bragg, N.C.
Bergdahl, a native of Hailey, Idaho, has said he was kept in a small, confined space by his captors after he made an escape attempt and was recaptured. He also told military doctors he was the victim of abuse during his years in captivity.
The Obama administration secured his release last May in an exchange that involved releasing five Taliban commanders who had been held at Guantanamo Bay.
The commanders were returned to Qatar, and the arrangement that led to Bergdahl's release drew immediate criticism, as some legislators questioned whether Obama had the legal authority to make the exchange.
If Bergdahl is sent to a court martial, the trial would likely reopen the debate about whether the Obama administration made a mistake in exchanging him for the Taliban prisoners. The five men have had to remain in Qatar under a one-year travel ban, but critics of the swap have warned that they could eventually return to the battlefield in Afghanistan and Pakistan.
President Obama has defended the swap, saying that he will not apologize for bringing Bergdahl home.
“We have a basic principle: We do not leave anybody wearing the American uniform behind,” he said last June.
After Bergdahl’s return, Susan Rice, Obama’s national security advisor, said that Bergdahl had served with "honor and distinction," a comment that she said later referred to his decision to enlist at a time of war.
An initial Army investigation later concluded that Bergdahl left his post without permission, further angering opponents of the prisoner swap.
The controversy surrounding the terms of his release trickled back to Bergdahl's hometown, where a deluge of threats led city officials to cancel his homecoming celebration.
Since his return, Bergdahl has been assigned to Joint Base San Antonio-Ft. Sam Houston in Texas, but he has stayed out of public view.
Hinnant said Bergdahl remains “on duty” and "is not in pretrial confinement at this time.”