What to Expect from Bowe Bergdahl’s Court-Martial

“While what he did was unacceptable… he was also the victim of terribly unlawful conduct.”

By Rhonda FanningDecember 15, 2015 2:28 pm, ,

Sgt. Bowe Bergdahl will face a court-martial hearing on charges of desertion and endangering troops. Currently, he is assigned to Fort Sam Houston in San Antonio, the site of his preliminary hearing in September.

Bergdahl was captured by the Taliban shortly after leaving his post in Afghanistan in 2009. He spent five years in captivity, before being released as part of a controversial trade for five detainees from Guantanamo Bay.

So what happens during the court-martial phase, and can Bergdahl hope for a fair trial now that his story is the focus of season two of the public radio spinoff podcast Serial? 

Geoffrey Corn, a retired Army lieutenant colonel and member of the JAG corps, is now a professor at the South Texas College of Law. He says the investigating officer who conducted the preliminary hearing, Lt. Col. Mark Visger, recommended that Bergdahl be tried by a lower level court-martial.

“Basically there’s a level of court-martial below the general court martial called the ‘special court martial’ that has limited punishment authority, and it could not have sentenced Bergdahl to what’s called the punitive discharge,” Corn says. “So a lot of people think: ‘Well someone like Bergdahl should be dishonorably discharged.’ What they don’t understand is the only why that can happen is if it’s part of a punishment after being convicted by a general court-martial.”

On why it’s not likely that Bergdahl will receive an extended sentence:

“In a military court-martial there are two phases: the guilt phase and the sentencing phase and both of them involve a real hearing.

“I don’t think the guilt phase is going to be that complicated because the charges he’s facing don’t really require proof of his mental state. They’re more based on a negligent decision or a reckless decision he made. So I think he’s gonna be convicted of the charges.”

On why the sentencing hearing is the most decisive phase of the trial:

“In the sentencing hearing the court is going to be able to consider all the evidence in mitigation and extenuation which will include the extensive evidence of his mental trauma.

“While what he did was unacceptable – and in my view a criminal breach of military duty – he was also the victim of terribly unlawful conduct. The geneva conventions make it very clear that when you capture somebody in any conflict, whether you’re a regular military force or an insurgent force, you have the obligation to treat them like a human being – humanely. And his treatment was brutal and unacceptable and all of that will be relevant consideration for the court martial when it decides what punishment is appropriate for this defendant on these circumstances.”

On whether the “Serial” podcast will affect the trial:  
“He’s waiving any right he has not to talk about the offense and all of that podcast information is now admissible evidence against him. The question on fundamental fairness under the due process clause requires that the government treat him fairly. If he chooses to make decisions that jeopardize his ability to get an outcome that he wants, there’s nothing unfair about it. That’s just either a good choice or a bad choice that he’s made.”

Listen to the full interview in the audio player above.