The case of Army Sgt. Bowe R. Bergdahl deserves the attention it’s getting, but it’s important that some basics be kept in mind as the national discussion crests.
First, regardless of what you think he may have done, Bergdahl is entitled to be presumed innocent. It is easy to lose sight of this in the middle of a media frenzy. Given the public vilification of Bergdahl, the danger is that the tidal wave of news coverage may make it a real challenge to empanel a court-martial—should matters wind up going in that direction—whose members can truthfully say that they have not prejudged the matter.
Second, as a person suspected of an offense, Bergdahl also has a right under the Fifth Amendment and the Uniform Code of Military Justice not to incriminate himself. We hope and trust that that right has been respected during his rescue from the Taliban and subsequent debriefing and medical attention at Landstuhl, Germany.
The media have performed a useful service not only in prying information from the government and asking questions of witnesses such as Bergdahl’s erstwhile comrades, but also in highlighting inconsistent positions that some prominent legislators have taken with respect to Bergdahl’s case. It is regrettable that some members of Congress and senators have seized on it to score points against President Barack Obama.
Congress sometimes seems to take more of a proprietary interest in individual military justice cases than it dares to in pending civilian cases. Legislators ought to work hard to resist the temptation to say and do things that might interfere with the fair administration of justice. (At the same time, Obama’s decision to announce the swap in the Rose Garden seems in retrospect to have been a most unwise choice since it inevitably conveyed the impression that Bergdahl’s conduct was above reproach. A private meeting with his parents would have been appropriate and preferable.)
Just what the narrative should be for Bergdahl’s conduct is not yet clear. Past incidents, such as those involving Pfc. Jessica Lynch and Spc. Pat Tillman that were initially presented to the public in a misleading light, should be cautionary tales and should have incentivized all concerned to stick to the facts that have been verified.
Transparency is one theme that has already emerged in the Bergdahl case. Should congressional leaders have been notified in advance of the details and timing of the prisoner exchange? Should an investigative report from 2010 have been classified? If so, shouldn’t it now be declassified? Bergdahl’s privacy seems to have been respected thus far, and that is only right. As his life, inevitably, comes increasingly under the microscope, it will prove ever harder to preserve that privacy.
We don’t know yet whether Bergdahl’s case will wind up in the military justice system, if nothing else, because of the simple imperative that soldiers must remain at their place of duty. If he does wind up in court, the country will have another crash course on a system of justice with which fewer and fewer Americans have had personal experience. But given the interest that has been generated over the last year or so because of the dismaying level of sexual assaults in the armed forces, the public will not be beginning from a cold start. That is a good thing: in a democratic society that is committed to relying on volunteers to populate its armed forces, military justice is everyone’s business.
Already, most readers of newspapers and online media, television viewers and those who listen to the radio know more than they did a fortnight ago about desertion, AWOL, circumstantial evidence, Article 32 hearings, convening authorities, the constitutional powers of the president as commander in chief, prisoner exchanges and other even more arcane topics. This national teach-in should continue, not to oppress or prejudice Bergdahl, but as a healthy sign of an interested public. The bar and legal academy should proactively help to inform that discussion, whether in small settings or through community and bar events and media appearances.•