Conflicting thoughts if Bergdahl released

WASHINGTON – The case of Army Sgt. Bowe Bergdahl, held by the Taliban since 2009, has arisen again as the U.S. and other countries engage in diplomatic efforts to free him.

But if he is released, will America’s only prisoner of the Afghan war be viewed as a hero or a deserter?

While tattered yellow ribbons still adorn utility poles in his native Hailey, Idaho, others are expressing conflicting thoughts about Bergdahl’s plight as the war winds down, with President Barack Obama threatening to withdraw all U.S. troops by year’s end unless the Afghan government signs a crucial security agreement.

They are convinced that on June 30, 2009, just a few months after he arrived in Afghanistan, Bergdahl willingly walked away from his unit, which was deployed in Paktika province in eastern Afghanistan, adjacent to the border with Pakistan. While they do want Bergdahl home, they think he should have to answer allegations that he deserted his unit.

Bergdahl was last seen in a video the Taliban released in December.

At this year’s Grammys, celebrities were photographed wearing Bowe bracelets. In the past two years, billboards with Bergdahl’s face have popped up in major cities. One shows a smiling Bergdahl, in an Army uniform, with the message: “He fought for us. … Let’s fight for him!”

A transcript of radio intercepts, publicly released through WikiLeaks, indicates that Bergdahl, then 23, was captured while sitting in a makeshift latrine.

“We were attacking the post he was sitting,” according to a radio intercept of a conversation among insurgents. “He had no gun with him. … They have all (the) Americans, ANA (Afghan National Army), helicopters, the planes are looking for him. Can you guys make a video of him and announce it all over Afghanistan that we have one of the Americans?”

A senior Defense Department official said that if Bergdahl is released, it could be determined that he has more than paid for leaving his unit – if that’s what really happened – “and there’s every indicator that he did.”

Still, it’s a conundrum for commanders under the Uniform Code of Military Justice and the equal application of the law, according to the official, who spoke on condition of anonymity.

Eugene Fidell, who teaches military justice at Yale Law School, said if there is evidence that Bergdahl left his unit without permission, he could be charged with being absent without leave or desertion.

Desertion during a time of war can carry the death penalty. But Congress never passed a declaration of war with respect to Afghanistan.

Were Bergdahl to be charged with desertion, the maximum penalty he would face is five years in prison and a dishonorable discharge, if it’s proved that he deserted with the intent to avoid hazardous duty or to shirk important service. A case of AWOL, ended by the U.S. apprehending him, would not require proof that he intended to remain away permanently. The maximum punishment for that would be a dishonorable discharge and 18 months’ confinement, he said.

“Someone is going to have to make a decision, based on a preliminary investigation, as to whether this is a desertion or AWOL rather than simply having the bad luck to have fallen into the wrong hands,” Fidell said.