Sgt. Bowe Bergdahl pleaded guilty to desertion and misbehavior before the enemy at his court-martial yesterday. Apparently the plea came without any agreement with the government, suggesting that Bergdahl is, in effect, throwing himself on the mercy of the military judge (he elected to have his case tried before a judge alone rather than a panel of officers). As you would expect, CAAFlog has expert commentary. I wrote about the case last year mainly because it shared something in common with the Belfast Project case: the defendant had made what amounted to a detailed taped confession to someone other than his lawyer or his priest, namely journalist and film producer Mark Boal; the confession had become publicly known (the tapes of their conversations were at the heart of Season 2 of the Serial podcast); and the government had sought discovery to get hold of the unedited interview tapes.
In my prior post, I noted that Boal had brought an action in the District Court in Los Angeles seeking to enjoin the government from taking discovery on First Amendment grounds, and I opined that he would lose and that he should lose. Ultimately the case settled, with Boal agreeing to provide a portion of the materials “that authenticate and provide context to conversations that aired on Serial,” and with the government agreeing to drop the subpoena. So there was never a decision on the merits of Boal’s claim. We live in a media-saturated world, but the advice to anyone has to be: do not confess serious crimes to journalists on tape.
Bergdahl’s guilt is clear, but the just sentence is harder to discern. On the one hand, Bergdahl spent five years in Taliban captivity and suffered greatly. Perhaps this is a mitigating factor. On the other hand, he caused his own captivity by running away in the middle of Afghanistan, and so perhaps his captivity is an aggravating factor! I don’t envy the military judge who has to decide the sentence, or the convening authority, who has to decide whether to approve it.
Bergadhl’s cause also provided a window into the character of our political leaders. President Obama, admirably in my view, made a tough-to-swallow deal to secure Bergdahl’s release, exchanging five detainees held at Guantanamo Bay for that purpose. The priority had to be Bergdahl’s release, and his worthiness had to be left for later. There were also real questions about the legality of the exchange, though in a less absurd world Congress would have applauded the President’s action to rescue an American soldier and understood the necessity of secrecy. But Obama gave Bergdahl a hero’s welcome in the Rose Garden, perhaps demonstrating his overly sunny and sometimes naive side. On the other hand, then-candidate Donald Trump heaped scorn on Bergdahl many times on the campaign trail, calling him a dirty, rotten traitor and demanding his execution—a jarring display from someone who lacks the moral authority say this kind of thing, and led to unnecessary litigation about whether Trump had exerted unlawful command influence, thus depriving Bergdahl of a fair trial. No one is perfect, but I think we can all look at the starkly different reactions to Bergdahl and decide which is the morally monstrous and which the perhaps overly optimistic.
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