Even if he's found guilty of desertion and misconduct, swapped Taliban prisoner Sgt. Bowe Bergdahl would likely serve little, if any, jail time because of mitigating circumstances, including five years of torture, according to military experts.
Testimony during his
two-day hearing in San Antonio last month included testimony about his horrific treatment by by the Taliban-associated Haqqani network – including beatings, starvation and being kept in a cage,
Stars and Stripes reports.
And if the evidence is left unchallenged, it might spare him jail time if convicted – or even wind up sparking a replacement of court-martial with another outcome, experts tells Stars and Stripes.
"It's hard for me to imagine either a judge or a military panel sentencing him to any additional confinement with the facts of this case," former Army lawyer Victor Hansen, an associate law professor at the New England School of Law, tells Stars and Stripes.
"From a fairness point, what more do we want to punish him for?"
Lt. Col. Mark Visger, who presided over Bergdahl's hearing, is expected to provide his recommendations Monday to Gen. Robert Abrams, commander of the U.S. Forces Command.
Abrams could disregard the recommendations, or it's also possible prosecutors, who didn't dispute evidence nor introduce aggravating evidence, might do so if Abrams sends the case to court-martial, Stars and Stripes reports.
According to Stars and Stripes, hearing testimony was sympathetic to Bergdahl – whose
release in 2014 came in a controversial swap for five Taliban captives at Guantanamo Bay detention facility.
In the picture painted during the hearing, reasons were offered for his motives for walking away from his base in eastern Afghanistan in June 2009, his state of mind, his actions while a Taliban captive. Questions were also raised about whether troops were killed while searching for him.
He's charged with desertion and misbehavior before the enemy that endangered troops who had to search for him; the charges carry a maximum potential of life in prison along with dishonorable discharge.
According to Stars and Stripes, hearing testimony showed weeks into his 2009 deployment to Afghanistan, then-Pfc. Bowe Bergdahl hatched a plan to alert the highest levels of command to what he considered serious leadership issues in his unit. The plot involved sneaking away from his post to run to a base 19 miles away to demand a general officer hear him out.
"He felt that it was his responsibility to intervene," Maj. Gen. Kenneth Dahl testified.
Dahl also testified his investigation found no evidence troops were killed during the search for Bergdahl, and said it would be "inappropriate" to send him to jail.
During his capture, he was beaten with hoses and chains, tied spread-eagled to a bed until his muscles atrophied, starved, humiliated and kept in a cage, according to testimony by Terrence Russell, an official with the Joint Personnel Recovery Agency, a survival specialist who debriefed Bergdahl, Stars and Stripes reports.
"If we say Bergdahl is to blame for what happened to him -- then what?" Zachary Spilman, a former active-duty U.S. Marine lawyer tells Stars and Stripes. "Do we as a society just cast this kid out? Any objective observer would say whatever Bergdahl did wrong, he has suffered enough."
A retired senior military official tells Stars and Stripes the case is an uphill battle for prosecutors at court-martial.
"Bergdahl's going to say his higher duty is to file a complaint," the official says. "You can argue that that's not his business. But in the court of public opinion, which the Army's concerned about, that's not going to play well."
"If you believe this is what he did and why he did it, the charges fit the facts," the official adds, however. "Just saying, 'He's a screwball,' is not good enough. The foreseeable consequences of his actions was putting his unit in danger. There has to be some kind of accountability."
Bergdahl's defense lawyer, Eugene Fidell, says the 29-year-old soldier should be medically retired with an honorable discharge, and that he could – at most – be held responsible for being absent without leave for one day.
The minute he was taken captive, Fidell argues, Bergdahl became a kidnapping victim.
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