Military prosecutors have reached into a section of military law seldom used since World War II in the politically fraught case against Army Sgt. Bowe Bergdahl, the soldier held prisoner for years by the Taliban after leaving his post in Afghanistan.
Observers wondered for months if Bergdahl would be charged with desertion after the deal brokered by the U.S. to bring him home. He was — but he was also charged with misbehavior before the enemy, a much rarer offense that carries a stiffer potential penalty in this case.
“I’ve never seen it charged,” Walter Huffman, a retired major general who served as the Army’s top lawyer, said of the misbehavior charge. “It’s not something you find in common everyday practice in the military.”
Bergdahl could face a life sentence if convicted of the charge, which accuses him of endangering fellow soldiers when he “left without authority; and wrongfully caused search and recovery operations.”
The Obama administration has been criticized both for agreeing to release five Taliban operatives from the Guantanamo Bay prison and for heralding Bergdahl’s return to the U.S. with an announcement in the White House Rose Garden. The administration stood by the way it secured his release even after the charges were announced.
The military has scheduled an initial court appearance known as an Article 32 hearing for Bergdahl on Sept. 17 at Fort Sam Houston, Texas. The proceeding is similar to a civilian grand jury, and afterward the case could be referred to a court-martial and go to trial.
Misbehavior before the enemy was used hundreds of times during World War II, but scholars say its use appears to have dwindled in conflicts since then.
The specification that Bergdahl faces appears in the 1971 case of an Army captain accused of endangering a base in Vietnam by disobeying an order to establish an ambush position. The captain was found guilty of other charges, including dereliction of duty.
Another case cited in a 1955 military law journal says an Army corporal was convicted under Article 99 of endangering his unit in Korea by getting drunk on duty. The article says he “became so drunk that it took the tank company commander thirty minutes to arouse him.”