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Is there a case for desertion against Bergdahl?

Amid heated rhetoric, military law experts weigh in on whether a case can be made for desertion

The circumstances surrounding the release of Sgt. Bowe Bergdahl continue to ignite controversy, with mounting calls that he be prosecuted for desertion for having allegedly walked away from his base in 2009.

The U.S. takes desertion seriously. Under military law, desertion in wartime can carry the death penalty.

But despite mounting speculation and heated rhetoric, legal experts tell Al Jazeera that the military would be hard-pressed to make a legal case for desertion. And the military, while saying it will review the situation, said on Tuesday that Bergdahl "is innocent until proven guilty." 

The Taliban captured Bergdahl in June 2009 after he walked off his base in Afghanistan, a decision that reportedly stemmed from his deep disillusionment with the war.

The soldier was freed on Saturday and handed over to U.S. Army Special Forces as part of a deal negotiated between the White House and the Taliban. The U.S. freed five detainees from the Guantanamo Bay detention facility in the exchange.

The Taliban published a 17-minute video Wednesday of Bergdahl's release to U.S. military forces. Two Taliban members, one waving a stick with a white cloth, apparently lead Bergdahl to his rescuers. The video could not be immediately verified by Al Jazeeera. 

Many Republican lawmakers immediately denounced the deal, saying that negotiating with terrorists sets a dangerous precedent and places the lives of American soldiers at risk.

Moreover, some questioned the wisdom of freeing senior Taliban commanders in exchange for a perceived deserter and traitor.

Some in the military argue that Bergdahl, having endangered the lives of service members who went looking for him, does not deserve a hero's welcome.

"I was pissed off then, and I am even more so now with everything going on," said former Sgt. Matt Vierkant, a member of Bergdahl's platoon, on CNN. "Bowe Bergdahl deserted during a time of war, and his fellow Americans lost their lives searching for him."

Speaking publicly for the first time about the case, Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey told The Associated Press Tuesday that the U.S. military leaders “have been accused of looking away from misconduct,” and said “it’s premature” to assume Bergdahl would not face discipline.

Following mounting pressure to punish Bergdahl, the Army announced Tuesday that it will launch a comprehensive review of Bergdahl’s situation once he is medically able to participate.

The investigation could lead to desertion or other charges against Bergdahl, Dempsey said, but that depends on the circumstances of his capture.

"Like any American, he is innocent until proven guilty," Dempsey said.

No American soldier has been court-martialed and executed for desertion since 1944, according to Victor M. Hansen, an associate dean and law professor at the New England Law School in Boston.

Typically, the military presses charges against deserters who make a public display of their desertion, Hansen told Al Jazeera, because the behavior could have an impact on order and discipline.

"Bergdahl wasn't publicly denouncing the war. At best, they have evidence that he was critical of the war, but there are plenty of soldiers who are critical of the war," said Hansen, a former military prosecutor.

A number of potential actions could be taken by the military, according to Hansen, some of which carry more serious consequences than others.

The decision to bring any disciplinary action, whether it's a court-martial or something less severe such as an administrative discharge, will originate with Bergdahl's military commander, Hansen told Al Jazeera.

Under the Uniform Code of Military Justice, the U.S. military's criminal code, Bergdahl could be tried for desertion — but that, however, is unlikely, said Hansen, given the high burden of proof required by the offense.

"The prosecution would have to prove that he had the intent to permanently remain away or avoid hazardous duty when he walked off the base," Hansen said.

Because so much time has lapsed, it’s going to be a challenge to establish factually that he had the intention to permanently remain away, said Hansen adding, "There are varying stories as to why he left. Memories fade and information gets jumbled five years after the fact."

Bergdahl has a strong defense — the fact of his capture. "He didn't have the ability to come back," Hansen said. "That presents a significant hurdle for the government."

Others wonder why the administration would put so much at stake in one prisoner only to turn around and charge him with desertion. 

“Politically, it seems odd to trade five high-value prisoners for a soldier who you are planning to charge with desertion. The government must have known the desertion allegations against Bergdahl before making the trade,” said James B. Jacobs, the Warren E. Burger Professor of Law at New York University Law School.

"Maybe an innocent explanation will come out about why Bergdahl left his unit,” Jacobs said. 

Phil Cave, a military defense lawyer, said that any decision will have to be balanced with “operational considerations.”

“The military likes to keep special operation missions secret,” Cave told Al Jazeera. "My sense is that they will not prosecute him. It would reopen wounds and may expose the military to some bad press."

Eugene R. Fidell, a visiting law professor at Yale University, said that the current investigation has to determine that enough evidence exists to suggest Bergdahl committed desertion before he could be court-martialed. 

"It’s a complicated issue. The administration is facing pressure to take some kind of action against Bergdahl," Fidell said. “It's unlikely that he will be charged with desertion, but I would not rule it out. They have to make a point that what he did — leaving his duty station in the middle of combat — was seriously wrong."

Hansen noted that any decision will probably take into consideration the time Bergdahl spent in captivity. "He hasn’t exactly been staying at the Hilton for the past five years. The more likely scenario is that they administratively discharge him from the army and be done with it," Hansen said.

"That's a much more cleaner way to do this." 

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