The U.S. military announced on Wednesday that Army Sgt. Bowe Bergdahl will face charges of desertion, and the rarer charge of misbehavior before the enemy, for walking away from his combat post in Afghanistan in 2009. He will now face an Article 32 hearing, roughly the equivalent of a grand jury proceeding in civilian court. (See our explainer for more details on what this means.) Following a major story by the late Michael Hastings in Rolling Stone, Bergdahl became a nationally known figure while still held by Taliban and other forces in Afghanistan. The prisoner swap that freed him on May 31st, 2014, has become one of the most controversial decisions of Obama's second term.
Bergdahl was traded for five Taliban figures of varying importance. The group is often referred to as the hardest of the hardcore Taliban commanders, and unconfirmed reports have speculated that one of the five may have reengaged with the Taliban following his release (though all five remain under some level of house arrest in Qatar). Whatever their history, though, there are many national figures in Afghanistan with similarly dark pasts. "Of the five, four were high-ranking Taleban officials, while the fifth was a minor figure," says Kate Clark of the Afghanistan Analysts Network. "Mullah Fazl Mazlum could be classed as the 'worst of the worst.' A senior Taliban field commander, he was in charge of forces which murdered civilians and burnt houses and vineyards north of Kabul in 1999. In terms of war crimes, there are men with similar records to Fazl in the current government."
The news that charges would be brought against Bergdahl elicited a predictable response from many in the media. One prominent conservative site proclaimed: "Confirmed: The Bowe Bergdahl Deal is as Disastrous as We Feared." Conservative lawmakers trafficked in similar scare tactics. "I believe it made Americans less safe," House Speaker John Boehner told Politico. "Knowing that the United States does not negotiate with terrorists is one of our greatest protections, and now it is compromised."
Others in the GOP went even further, conflating prisoners of war with hostages, and staking out positions that could unintentionally incentivize the execution of any future American POWs. "Regardless of his conduct, the United States should not negotiate with terrorists or trade terrorist detainees for American hostages," Senator Tom Cotton (R-Arkansas) said in a statement. Cotton recently grabbed headlines by authoring a letter to the Iranian government warning them that any nuclear agreement could be rescinded by the next administration, and has called for current Guantanamo detainees to "rot in hell."
Many who opposed the trade have also claimed that five members of the military died searching for Bergdahl, which the Pentagon has not confirmed.
The conservative response to the charges against Bergdahl is fundamentally flawed and opportunistic. As but one example, Rep. Duncan Hunter (R-California) sent a letter to the Obama administration in March 2014 calling for Bergdahl's "safe return," according to documents obtained by Vice News' Jason Leopold. Hunter must have changed his mind by the time he later appeared on Fox News to suggest that Bergdahl was a deserter.
But beyond the political posturing, acting as though the Army's announcement on Wednesday is proof of anything shows a deep disregard for the rule of law. First and foremost, Wednesday's announcement was not made by the foreperson of a jury at the conclusion of a trial. It was the military version of a prosecutor impaneling a grand jury. What the Army announced wasn't even the equivalent of a grand jury returning an indictment, a famously easy task in every case except those that involve law enforcement.
Those treating the preliminary investigation's findings as proof of desertion, if they were being consistent, would presumably have treated the impaneling of grand juries against Ferguson cop Darren Wilson and NYPD cop Daniel Panteleo as conclusive proof that each had murdered an unarmed black man. Of course, each of the grand juries in those cases failed to return indictments – a conclusion that is still possible in Bergdahl's court martial.
Second, even if all the charges are eventually proved, the swap was still the only moral choice the Obama administration had. If they had decided not to pursue every available option to retrieve Bergdahl, especially because of the political cost it would require, they would have been setting a terrible precedent for all future U.S. prisoners of war who might wonder if their country would abandon them without charge or trial in the event of shifting political winds.
At root of the controversy is the fact that Bergdahl has become a proxy for conservative hatred of Obama's foreign policy writ large, no matter how poor a fit for that task he is. The swap, conservatives say, shows Obama's willingness to capitulate with the enemy. It shows his lack of toughness – the same that they see in his policy toward ISIS or Iran. In short, it shows his general weakness on national security and American leadership in the world, which – in the minds of war hawks – is responsible for every international crisis, no matter how outlandish: from Putin annexing Crimea to ISIS's brutal conquest across Syria and northern Iraq. This is essentially an attempt by the right wing to change the subject from Bergdahl's case to their own tired foreign policy hobbyhorses.
All that said, there is plenty to criticize the Obama administration about in the Bergdahl case. As Sen. Mitch McConnell (R-Kentucky) has argued, the administration almost certainly broke the law by not advising Congress of the transfer with 30-days notice. The administration has claimed it wasn't able to do that due to changing conditions on the ground, but documents obtained by Vice News show the administration didn't keep Congress informed as talks progressed. Obama's decision to proceed with the trade in violation of his reporting requirements is a serious issue, though, arguably, a far lesser presidential power-grab than claiming the power to kill a U.S. citizen without charge or trial, as in the case of Anwar al-Awlaki's death in 2011.
Another legitimate criticism comes from families of U.S. hostages who feel that the government didn't do enough to get their loved ones home. Though it's easy to claim the mantle of toughness by proclaiming the U.S. doesn't negotiate with terrorists, the effects of the policy are much harder to face. Numerous families have criticized the administration for what they thought was a laissez-faire attitude toward repatriating kidnapped U.S. journalists and aid workers. Last December, the White House began an internal review of its policy of handling hostage negotiations, scheduled to last for roughly the remainder of this year. The goal of the review will be to lessen inter-agency squabbling, not reevaluate whether the U.S. should pay ransoms to terror groups.
Bergdahl's lawyer's description of his time as a prisoner is difficult to read, though the techniques described, which include stress positions and sleep deprivation, will be familiar to anyone who has followed U.S. treatment of accused terrorists since 9/11. Whatever his crimes, turning Bergdahl into a Rorschach test on Obama, Bush or the War on Terror is a mistake. If the case moves to a court martial, anyone who wants justice should hope the military doesn't fall into that trap.