“Serial” can continue to do Americans, its military, and the military justice system a service by filling in the blanks of the inappropriately opaque and seemingly biased Army prosecution of Sgt. Bowe Bergdahl.
U.S. criminal law has long recognized what’s often referred to as a “choice of evils” defense that relieves a defendant of criminal liability. It is premised on the idea that committing the crime in question was necessary to avoid a worse harm to the defendant or others. While this “necessity” defense is less developed in military criminal law, the narrative that came out at Sgt. Bowe Bergdahl’s preliminary hearing and the “Serial” podcast resembles a warped necessity defense: Bergdahl felt that he had no choice but to walk off his outpost in a deluded but sincere attempt to save his unit from leadership catastrophe.
What was ‘reasonable’?
For this defense to relieve Bergdahl of criminal liability, his actions had to be reasonable. “Reasonable” does not mean that he honestly believed that a threat of grave harm was real, which it appears he did. Instead, “reasonable” means that other folks with the same information, such as his platoon mates, would have legitimately believed it too.
“Serial” helps with this reasonableness assessment by providing a view into the surrounding facts and circumstances of Bergdahl’s capture, such as whether there were less harmful — and non-criminal — alternatives to walking off one’s post in order to bring attention to poor leadership, and whether that leadership was so bad as to be reasonably considered dangerous in the first place.
The combat context that “Serial” helps bring to life indicates that Bergdahl’s actions were well-motivated yet far from reasonable — so far from reasonable, in fact, as to indicate they were the product of a dangerously unhealthy mental state. Hence the “severe mental disease or defect” diagnosis that “Serial” reports Bergdahl received from top Army doctors is unsurprising. What is relatively surprising, given such facts illuminated by the podcast, is why the Army is prosecuting Bergdahl for the deluded act of leaving his base — given that he was mentally ill at the time. And further surprising given that the Army was negligent in enlisting him and sending him to Afghanistan in the first place, after the Coast Guard had already discharged him following their recognition of his mental vulnerabilities. This was a recipe for disaster from the get-go.
Army negligence plus mental illness plus combat zone stress equals a soldier who walks off his outpost in the middle of hostile enemy territory in order to save his unit from a supposedly substandard battalion commander. And it equals significant mission disruption as well as, one surmises, soldiers wounded in search-and-rescue operations. And it equals a lonely and ill soldier held captive, in isolation in a cage, for almost five years; a soldier tortured worse than any U.S. service member since Vietnam. And it equals a nation honoring its obligation to leave no soldier behind by trading Taliban detainees for a gaunt ghost of a soldier. And it equals an Army seemingly wanting revenge against a soldier it views as having broken a sacred bond of brotherhood, despite being an Army that continues to shamefully fail those among its ranks who suffer from mental illness. An Army in need, perhaps, of more moral courage in its leadership ranks.
Not your regular court of law
Given that what Bergdahl is charged with doing — essentially leaving his post and causing an uproar in a combat zone — is a crime only in the military and only for military members, it’s an interesting thought exercise to consider whether or not a real prosecutor would have decided to pursue such charges. By “real” I mean a professional prosecutor, an attorney whose full-time job is to objectively weigh whether or not to prosecute folks and then to oversee their prosecution. The military doesn’t have these; instead, non-lawyer commanders get to decide which military members under their command to court-martial and when to do so, with near plenary discretion. Even the Department of Defense, in its own report on its military justice system released just in December, recognizes that this system is inadequate — that such non-lawyer commanders suffer from a dearth of meaningful guidance regarding when, how, and whom to prosecute.
It’s also interesting to consider whether or not Gen. Robert Abrams (whose father, Creighton Abrams Jr., a former Army chief of staff, has a tank named after him) would have made the decision to prosecute Bergdahl if Sen. John McCain hadn’t been publicly calling for Bergdahl’s punishment. This is no small matter, considering that Abrams must go before McCain and his committee for his next assignment as a four-star general. Hence, even if the general’s decision to prosecute Bergdahl could have been deemed reasonable based on the Army’s desire for retribution and the belief that good order and discipline warrant it, such ostensible reasonableness is grossly overshadowed by both the perception and likely reality of inappropriate bias. Perhaps this case provides more fuel for those on Capitol Hill to renew their efforts to wrest sole prosecutorial discretion and its abuse from untrained and unguided military commanders whose expertise lies elsewhere.
Meanwhile, the Army continues to play fast and loose with procedural rules in Bergdahl’s prosecution — refusing to release unclassified documents that it used as evidence in his preliminary hearing, and recently asking for and receiving a stay in the proceedings because it just now figured out that it doesn’t know how to handle classified evidence. “Serial” can continue to do Americans, its military, and the military justice system a service by filling in the blanks of the inappropriately opaque and seemingly biased Army prosecution of Sgt. Bowe Bergdahl.
Rachel E. VanLandingham, Lt. Col. (ret.), USAF, is an associate professor of law at Southwestern Law School who teaches criminal law, national security law, and criminal procedure.