The Secretary’s Playbook on Sergeant Bowe Berghdahl

June 11, 2014

The Sergeant Bergdahl swap has been criticized on the basis of a failure to notify Congress as required by an annually-renewed provision from the FY11 NDAA, for trading five terrorists for one soldier, and because Bergdahl allegedly procured his own capture by abandoning his deployed unit in Afghanistan. Administration officials now face a consequent legal, political, and public relations minefield. But the Secretary of Defense, for one, stands his best chance of negotiating this minefield by following a playbook of sequenced action designed to ensure accountability while celebrating Sergeant Berghdahl’s return to his nation’s protection. So what does this playbook consist of?

1. Convene an Investigation

There is reason to believe that Sergeant Bergdahl abandoned his unit in combat, possibly intending to desert or remain away from his unit permanently, which ultimately led to his capture. By some accounts, at least eight U.S. servicemembers were killed in action while searching for Sergeant Bergdahl, though it is difficult to know whether these casualties would have been sustained absent the requirement to search for the missing soldier. There are lots of facts that Army leaders need to know about the circumstances, and the American people deserve to hear them from the Army, rather than through endless media chatter and speculation.

The investigation should be led by a 2-star Army general, preferably a veteran of Afghanistan who has announced his retirement but will agree to stay through the duration of the process. He should be administered a special oath to conduct his investigation with utter neutrality and objectivity, and he should be under strict orders to report to the DoD Inspector General any attempts to influence his investigation. The Inspector General should in turn be under strict orders to disclose any such attempts to the President and the two Capitol Hill Armed Services committees. The investigation’s leader should be supported by a uniformed lawyer from a different service – preferably a one-star – and he should have at his disposal a joint team of professional criminal investigators, infantry officers, intelligence officers, SERE (Survival, Evasion, Resistance and Escape) experts, and lawyers. His stated objective should be inquiring into the facts and circumstances leading to Berghdah’s disappearance and his treatment in captivity, and he should be afforded six months to complete the investigation, including the production of both classified and unclassified versions of his final report. Ultimately, this report needs to provide specific recommendations regarding changes in training, doctrine, and personnel accountability, both in general and specifically regarding disciplinary or administrative action warranted in this case. For any investigation to be meaningful, the leaders must have unconstrained access to all DoD and intelligence community records germane to their inquiry.

2. Stay Out of the Way of the Army

If the investigation substantiates misconduct by Bergdahl, the Army must be free to institute disciplinary proceedings, as the Marine Corps did with Vietnam-era deserter Robert Garwood in 1979. Euphoria over his return, justified and appropriate any time an American is returned alive from the hands of the enemy, should not cloud the Army’s vision over the need for accountability. Like reprimanding a runaway son while welcoming him into its warm embrace, the Army must have an opportunity to determine, without interference, whether charges and punishment are necessary.

Some commentators maintain Bergdahl has American blood on his hands as a result of his irrational and selfish decision to walk into the enemy’s open arms. Whether that blood is accounted for by a court-martial, an administrative proceeding, or no action must be an Army decision in the exercise of traditional military disciplinary discretion. We must not give Bergdahl a pass merely out of immediate appreciation that he has come home in one piece. He should be held to the same standard as any other soldier who abandoned his unit in combat, if that is discovered to be the case.

If there is a court-martial or administrative separation proceeding, Bergdahl’s five years in captivity should be considered in mitigation, in much the way that Charles Jenkins’ years of near involuntary servitude in North Korea was taken into account in adjudicating an incredibly light sentence for desertion in combat – 30 days confinement and a dishonourable discharge. No matter what, if the investigation substantiates that Bergdahl walked away from his unit in combat, he must not be allowed to muster out of the Army with five years of back pay, VA benefits, and an honorable discharge the same as any other soldier who followed his orders and remained true to his oath. Eight Americans who may have given all in the quest to bring Bergdahl home did not get that opportunity.

3. Make Him Write a Book

If a court-martial occurs, and ultimately results in a plea deal for an administrative or low-level judicial accounting of Sergeant Bergdahl’s conduct, a condition of the plea agreement should be that Bergdahl must cooperate with a ghost writer who will help him write his memoir. Sergeant Bergdahl’s discharge should be awarded upon completion of the terms of the deal. All profits from the book and likely inevitable movie should go toward a selected wounded warrior project. If Sergeant Bergdahl really deserted, he should not profit from his crime, but his story must be told, for posterity. This story has tremendous commercial potential, and the proceeds should be channelled to care for those who did all their duty, not simply some of it.

4. Stop Calling him Bowe

Sergeant Bergdahl is an Army Sergeant. Calling him by his first name in the media is a classic, transparent, and shallow public affairs ploy to personalize him; it is a clear effort to make his story warm, endearing and politically tantalizing by defining his narrative as a story of the triumph of will by an American son. If the investigation shows that Bergdahl was without willful fault in his being captured, America should embrace him, buy his book, and go to the movie, the production of either of which would not be compulsory if he is exonerated of wrongdoing, but would surely be inevitable. If he was captured, rather than a deserter, indeed, America should make Bergdahl a very comfortable man in perpetuity. Until those facts have been determined, he should remain simply Sergeant Bergdahl. Once he has recovered sufficiently from captivity, he should be returned to duty to earn his paycheck and be placed on “legal hold” – an involuntary extension of his enlistment to investigate and adjudicate potential misconduct – awaiting a possible court-martial, the best vehicle for determining the circumstances leading to his captivity.

5. Publish Unclassified Records on the Released Detainees

The Department of Defense should release unclassified or declassified records showing the released detainees’ lack of continuing intelligence value and low likelihood of recidivism, including the nature of the Qatari security guarantees and other unclassified measures undertaken to ensure they never harm Americans again. If these detainees were eventually going to be released anyway, instead of facing trial in federal court or military commissions, little was lost by simply speeding up the process, particularly where risk can be mitigated through monitoring and tracking their post-release movements. These records will quell some of the criticism surrounding the release and will place this trade in proper context, among hundreds of thousands of prisoner exchanges which have always been a part of American military practice. Are there deals in place to get them indicted by the International Criminal Court, or by the Afghan Ministry of Justice? If so, disclosure of as many unclassified guarantees as possible would help assuage the acrimony over their release.

6. Disclose (Post Hoc) the Transfer to Key Congressional Leaders.

Section 1035 of the FY2014 National Defense Authorization Act requires congressional notification prior to the expenditure of appropriated funds to transfer a Guantanamo detainee. Clearly, that provision was ignored in this case, and technically speaking, the transfer was illegal, in a technical, unenforceable way, a fact the White House has now tacitly acknowledged. The Secretary could mitigate those concerns by sending key congressional leaders, such as the Gang of Eight, a letter now “notifying” them of the transfer and fully explaining the exigencies of the situation and why 30 days notification would have risked operational security to an unacceptable level or caused the U.S. to potentially to miss the opportunity to retrieve a U.S. servicemember. Such a letter must be cast in terms of the stark choice between rigid compliance and the lost opportunity to bring home an American son, and could mitigate the vicious, swirling media cycle through transparency and forthrightness about the reasons underlying the decision. Congress is a full, equal partner with the President in matters of national security, and their role must be accorded some deference and respect.

There is a lot we do not know about Sergeant Bergdahl’s ordeal and the circumstances that led to his capture. We need to know all of it, or all of it that can reasonably be discovered. Moreover, we need to put as many of the details as possible out to the American public, who have grown so cynical and divided that they suspect the timing of every event to be political and every executive action to constitute overreach.

America, including this administration, should resist the temptation to simply write off Bergdahl’s absence from the Army during five years of captivity. Rather, there must be an accounting, if we have any hope at all of preserving the code of conduct for U.S. servicemembers and force discipline in future conflicts.

 

Butch Bracknell is a retired Marine officer and international lawyer. He is a member of the Truman National Security Project’s Defense Council and the University of Virginia’s Sorensen Institute of Political Leadership.

 

Photo credit: Chuck Hagel