‘Hero’ No More

Can Bowe Bergdahl Get a Fair Trial After Being Publicly Called a Traitor?

He was held by the Taliban—and then beat up in the press, once he got home. Will all the bad attention taint Bowe Bergdahl’s chance at impartial justice?

Jeff Green/Reuters

Since his release from Taliban captivity in 2014, U.S. Army Sergeant Bowe Bergdahl has been labeled as a deserter or a traitor by the media, former servicemembers—and even Donald Trump.

After a year's worth of bad press, Bergdahl’s lawyer wonders whether he could get a fair chance to defend himself against charges stemming from his 2009 disappearance from his post in Afghanistan.

Media coverage—and Bergdahl’s relatives’ persistent efforts in Hailey, Idaho—kept the captive’s story in the headlines for years. But when he was swapped for five Taliban detainees in 2014, the narrative quickly changed, with questions about Bergdahl’s loyalty and the wisdom of letting the so-called “Taliban Five” free. Attorney Eugene Fidell said, the negative attention could cause his client to have an unfair trial. Some 40 journalists plan to attend Bergdahl’s Article 32 hearing—the military’s equivalent of a grand jury proceeding—in San Antonio on Thursday.

Bergdahl, 29, is charged with desertion—which carries a five-year sentence—and misbehavior before the enemy, for which he could face a life sentence. The hearing will determine whether Bergdahl should be court-martialed.

“The amount of venom with which the Internet seethes concerning SGT Bergdahl is beyond description,” Fidell wrote in a plea to a military tribunal to release details of an interview that preceded Bergdahl’s charges. “In short, it has been ‘open season’ on SGT Bergdahl.”

Days before the hearing, Fidell released the plea and other documents that show how he’d tried unsuccessfully for months to compel the Army to release a summary and transcript of an Army general’s interview with Bergdahl in 2014.

“The defense believes it is in the public interest for these documents to be made available without further delay,” Fidell wrote.

A protective order has kept Fidell from releasing the transcript and summary himself.

But meanwhile, he said, other documents painting Bergdahl in a negative light have been leaked to media like Fox News Channel. The results have been predictably vicious.

To support his case, Fidell presented links to a dozen news articles under the heading, “hostile stories,” a compilation of nasty online comments and an expert declaration from Lawrence J. Fox, a legal ethics lecturer at Yale Law School, where Fidell also teaches. One Fox News story quoted a former military intelligence officer as saying that there was clear evidence that Bergdahl was “going over to the other side with a deliberate plan.” Another story, posted on Newsmax, quoted a retired U.S. Army lieutenant colonel who said that the Army, “thank goodness, did not cave to the political pressure brought to bear on them by the White House,” while investigating Bergdahl and eventually charging him with Army crimes.

Fidell said there is growing doubt that his client will get a fair trial “given the prolonged barrage of opprobrium that has been heaped upon him over the last year.”

After five years in captivity, Bergdahl was released in a prisoner swap for five Taliban members who’d been held at Guantanamo Bay. President Barack Obama announced the deal victoriously in a rare Saturday press conference in the White House’s Rose Garden, flanked by Bergdahl’s parents.

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Susan Rice, U.S. national security adviser, said in a TV interview that Bergdahl had served with “honor and distinction.”

But his hero’s welcome quickly turned hostile as the Pentagon investigated claims that he’d willingly walked away from his guard post, leaving behind his rifle, helmet and body armor in a neat stack. Thursday’s hearing should shed light on the details surrounding Bergdahl’s disappearance, captivity and rescue.

In March, the Army announced the charges against Bergdahl, which stemmed in part from a 2014 interview with Major General Kenneth Dahl.

Shortly afterward, Fidell asked for the transcript of that interview to be made public, saying that his client’s ability to have a fair trial had already been tarnished.

On Tuesday, more than 80 days after Fidell’s request, an Army panel replied to him that he hadn’t asked the proper authority for permission to lift the protective order to release the documents. Fidell is also seeking for the documents to be released during the trial.

Bergdahl’s very life is in danger, Fidell said, quoting Bergdahl’s immediate commander at Fort Sam Houston who “believes he is in physical danger.” Bergdahl has to be escorted off base and is at high risk of confrontation when he visits the base hospital.

Some of the anti-Bergdahl sentiment comes from Obama’s political opponents, who have criticized the deal he made to release Bergdahl for months. Recently, the issue came up in the race for Obama’s replacement.

During a stump speech in New Hampshire in August, GOP candidate Donald Trump labeled Bergdahl a “dirty, rotten traitor,” and repeated a debunked rumor that soldiers were killed while searching for the prisoner-of-war.

Fidell called Trump’s statements “the lowest kind of demagoguery,” “contemptible and un-American,” and “a call for mob justice.”

“Mr. Trump must stop vilifying this young man, who suffered five years of brutal captivity at the hands of the Taliban and deserves to be judged on the basis of evidence rather than slander from someone who has never worn our country’s uniform,” Fidell responded.

Bergdahl’s 2009 disappearance and capture by the Taliban triggered an enormous response from the U.S. military.

Nate Bethea, who served in Bergdahl’s battalion in Afghanistan, wrote in a column for The Daily Beast that he and others searched village-by-village for Bergdahl, then a private who was promoted to sergeant during his captivity. They often faced rifle and mortar fire from insurgents, Bethea wrote, enraged the local civilians, and the search was “even more infuriating because it was all the result of some kid doing something unnecessary by his own volition.”

Last week, retired Navy SEAL Jimmy Hatch told CNN he was shot in the leg while searching for Bergdahl. He and others came under heavy fire during a rescue attempt, Hatch said, and had to be flown out. Hatch later was given a Purple Heart and the Bronze Star.

These stories could affect a potential member of the jury, if Bergdahl’s case ever reached that point. That’s according to David Coombs, who represented Chelsea Manning, the former U.S. Army Private First Class Bradley Manning who was charged and convicted of improper release of classified information to WikiLeaks.

After the Article 32 hearing, the investigating officer will report recommendations on how to proceed to General Mark Milley, commanding general of Army Forces Command. Milley can then accept or reject the recommendation, Coombs said, and then, Bergdahl could choose whether his proceeding will take place before a judge or a jury panel.

Only if Bergdahl chooses a panel, Coombs said, would potential jury members then be told to avoid media coverage of the case.

“By then, the cat’s already out of the bag. How do you kind of put that back?” Coombs said. “Any potential panel member probably reads and pays attention to news that affects the military.”

Before Manning's Article 32 hearing, Coombs said that he, too, feared bias because of the case’s high profile. Obama said Manning had broken the law, and other cabinet members called it a “terrorist-type act,” Coombs said.

To counter, Coombs said he, too, tried to put out information that would present his client in a different light, but like Fidell, felt the Pentagon picked and chose when to comply with gag orders.

“It is frustrating that there is a double-standard. It was difficult, because the government had a bigger pulpit than the defense did,” Coombs said.

Coombs plans to appeal Manning’s case, which was tried before a judge and not before a jury.

“The military process is a very fair process,” he said, adding, “both sides should not try the case in the media.”