So what is going on with Sgt. Bowe Bergdahl investigation? And what role, if any, does the White House have in this potential criminal case?
In the last 24 hours, Fox News contributor retired Lt. Col. Tony Shaffer said two sources told him Bergdahl “will be charged with desertion.” Respected NBC Pentagon reporter Jim “Mik” Miklaszewski also reported that senior defense officials told him Bergdahl “will be charged with desertion.” Pentagon spokesman Rear Adm. John Kirby said today Bergdahl “has not been charged” and no charges “have been referred.”
Those statements are not inconsistent, and here is why.
Shaffer and Miklaszewski report that Bergdahl will be charged—ostensibly soon. Kirby is merely saying Bergdahl has not been charged yet. And by saying Bergdahl has not had charges referred against him, he is betting the press and public don’t understand the unique procedural steps in the court-martial process.
Criminal charges in the military are preferred against suspected criminals first. If the charges are misdemeanor charges, the convening authority can refer those charges to a court-martial immediately.
In felony cases, after the charges are preferred, the accused goes to an Article 32 hearing (roughly equivalent to a civilian preliminary hearing), where the convening authority—the general who will handle Bergdahl’s case—decides what, if any charges to levy against him. Those felony charges then are referred to a court-martial.
I explained that process in more detail here and here.
Second, assuming sources did leak the information, we should ask why. It could be the sources want to ensure the Army actually goes forward with a court-martial against Bergdahl. Since the White House orchestrated and approved the transfer of five top Taliban commanders then housed at Guantanamo Bay for Bergdahl, the sources may be concerned the Army might not want to court-martial Bergdahl for fear of negative political consequences to the administration.
We’ll never know whether that is the reason, but we do know that in any high-profile federal criminal case—whether it is brought in federal district court, a court-martial or a military commission—the agency handling the case will notify the White House press office before charges are announced. This is a common occurrence and a common-sense practice as the press may ask the White House to comment on the case.
But it would be highly inappropriate for any White House to attempt to influence a court-martial proceeding at any stage in the process. There is no evidence at all this White House is attempting to influence the general who will decide Bergdahl’s fate.
The military criminal justice system is a strong, independent system, designed to allow the military to enforce good order and discipline in the armed forces. The Bergdahl case, which is not complicated, should be handled like any other desertion or unauthorized absence case in the system. Military leaders charged with carrying out the administration of justice must do just that—carry out justice—regardless of the political fallout.
