In Episode 3, Sarah Koenig argues against those (like Donald Trump) who claim Bergdahl is a traitor. She offers evidence that he cooperated fully in debriefings with American intelligence officials; escaped from captivity twice; and otherwise behaved as well as can be expected (and generally in accordance with the Code of Conduct) while in captivity. Earlier, we heard his reason for leaving his post. While his reason was bizarre (wanting to get the national microphone so he could draw attention to perceived instances of bad leadership), it wasn’t disloyal. In his irrational way, he was actually trying to improve things for Americans.
This episode isn’t very controversial but one interesting thing popped out to me. His mental health didn’t seem to decline that much while he was in captivity. Based on what I have read and heard so far, I suspect that he had a serious mental health problem at the time he left. He may have had something chronic, like dysthemia or a personality disorder on the schizo-spectrum, and that condition was exacerbated by acute stressors that pushed him into this grandiose thinking. Or he may have been experiencing the onset of bipolar disorder and was experiencing symptoms associated with that.
I’m not sure how to reconcile the two (a serious mental health condition that explains his behavior and reduces his culpability, but which did not seem to manifest after the crime is over), except that sometimes a mental health problem can be aggravated by some stressors and not others. It may be that at that time, Bergdahl was an injustice collector. As he compiled instances of betrayal by the very people entrusted with soldiers’ lives (these are the perceived leadership failures that he wanted to spotlight), his mental health worsened. However, while in hostile captivity, he was not exposed to that kind of stress. The stressors he faced in captivity were easier for him to process because they came from people he knew were hostile to him. Those stressors did not involve betrayal.
This is just armchair psychology from someone with no real qualifications, and I expect that we’ll learn much more about his mental health during the court-martial. Hopefully we’ll learn more during Serial.
Below the fold, I’ll answer a couple of questions people have asked me. First, if Bergdahl is facing a life sentence, why isn’t he in pretrial confinement? Second, is he being treated as a pariah while on Fort Bragg, North Carolina?
Bergdahl is not in pretrial confinement because his facts do not satisfy the military’s test for putting someone in pretrial confinement. The military does not have a bail system. Rather, commanders can order an accused into pretrial confinement but only if a fairly rigorous test is satisfied.
To order someone into confinement, commanders must be satisfied that there is probable cause that: the accused committed the crime; the accused is either a flight risk or poses a threat for future serious misconduct (like obstruction of justice, violence, or threat to national security); and less severe forms of restraint (generally, orders to stay in a certain area) are inadequate. Once the commander orders someone into pretrial confinement, that decision is later reviewed by a military magistrate using a preponderance standard. A military magistrate is usually a judge advocate who has already served a tour as a trial counsel or defense counsel and is now practicing some other area of military law.
When a potential sentence is very high (such as in Bergdahl’s case), then the government can argue that the accused might run. Here, there must not have been any other indications that Bergdahl would run, and there don’t appear to be any facts that suggest he would commit future serious misconduct. So, his commander decided he shouldn’t go into pretrial confinement.
Occasionally, these rules lead to odd results. At Fort Bragg, North Carolina, in the late 2000s, a service member was on trial for a grisly triple murder and rape — and he was not ordered into pretrial confinement. The murders occurred in the mid-1980s. The soldier was tried in civilian court; convicted; put on death row; and discharged from the Army. His conviction was reversed and he was then retried in civilian court and acquitted. He then reenlisted into the Army (yes, he subjected himself to the only jurisdiction that could retry him for the murder) and served a full career. He retired and moved to Washington State, 30 miles south of the Canadian border. Meanwhile, in the mid-2000s, a detective in North Carolina conducted a cold-case investigation and found the accused’s DNA on a swab from the victim’s body. The service member was then given orders to report to Fort Bragg so that he could be stand trial for capital murder and rape.
Instead of crossing the border into Canada, the accused reported unescorted to Fort Bragg for his death-penalty trial. He didn’t appear to be a flight risk. And, there was no evidence that he had committed any misconduct since he reenlisted into the Army. He didn’t appear to pose a risk for committing future serious misconduct, either. So, he spent the period leading up to the trial working in an office on Fort Bragg. Once he was found guilty, he was ordered into pretrial confinement (apparently he now had a really good reason to run). He is now on the military’s death row.
Okay, so Bergdahl shouldn’t be in pretrial confinement, but is he a pariah on Fort Bragg? Probably, but he can’t be treated as a pariah. While waiting for trial, Article 13 of the UCMJ prohibits the command from punishing the accused related to those charges. A potential punishment at trial is a reprimand so the command can’t say things to Bergdahl like, “There goes the traitor” or anything like that. If someone does (or if the command otherwise tries to stigmatize or humiliate the accused), then Bergdahl can file a motion for sentencing credit. The accused has to be treated with respect, and generally this means that the accused needs to be put to work just like any other service member. This is why Bergdahl is working every day as a clerk somewhere on post.
The next Serial episode won’t be until next week, so until then, Happy New Year!
Posted by Eric Carpenter on December 28, 2015 at 07:02 PM