When Army Sgt. Bowe Bergdahl sits down at a conference table Wednesday morning with his lawyer and the general investigating his disappearance in Afghanistan five years ago, he'll be taking part in a procedure something like a police grilling, but with crucial differences from the civilian justice system.
After five years in captivity by the Taliban, Bergdahl, 28, was swapped May 31 for five prisoners held at the U.S. detention facility at Guantanamo Bay. Many questions have swirled around Bergdahl since his return home — the answers to which could lead to a wide range of actions, from a court-martial to a finding that he was innocent of any wrongdoing.
Here's what will happen Wednesday at Fort Sam Houston in San Antonio, Texas, where Bergdahl has been working a desk job since his return to active duty pending the investigation.
What's the Meeting About?
Bergdahl and his lawyer are meeting with Maj. Gen. Kenneth R. Dahl, the Army's investigator in what's called an AR (for "Army Regulation") 15-6 proceeding. It's not a court procedure; instead, it's a series of questions and answers intended to gather information for Dahl's eventual recommendations to his higher-ups.
The Code of Military Justice offers the subjects of investigations more protections than they would get in the civilian justice system. Bergdahl could have chosen not to take part, for example, but his lawyer has said he wants to talk. And even though he hasn't been arrested or charged with anything, Bergdahl will be read his rights under Article 31 of the code, if he hasn't been read them already.
Who's Asking the Questions?
Dahl, deputy commanding general of 1st Corps at Joint Base Lewis McChord in Washington state, is a highly decorated officer who has served two tours of duty in Afghanistan, the second as deputy commander of U.S. forces. Colleagues and military analysts say he's well-suited to lead an investigation like the Bergdahl case: Besides holding a master's degree in social psychology, Dahl has served in political affairs posts at the Pentagon — experience that could come in handy given the sensitivities surrounding the investigation.
Who's Representing Bergdahl?
Bergdahl's legal team is led by Eugene Fidell, the Florence Rogatz Visiting Lecturer in Law at Yale University. Fidell is a former Coast Guard judge advocate, co-founder of the National Institute of Military Justice and a member of the Pentagon's Defense Legal Policy Board.
Fidell, who was preparing Bergdahl for his questioning and was unavailable for comment Tuesday, told NBC News earlier that he couldn't discuss the case, but he said, "We will be as cooperative as possible with General Dahl."
What's Being Asked?
"There are lots of unanswered questions," said Greg T. Rinckey, head of the military law practice at Tully Rinckey, a legal firm in Albany, New York. Rinckey handled more than 100 cases as an attorney with the Army Judge Advocate General's Corps before entering private practice.
Because an AR 15-6 investigation is an administrative and not a judicial action, the normal rules of legal evidence don't apply, and there's no limit on what Dahl can ask about.
But in this first formal interview, he's likely to pursue a general line of questioning to establish a base of information for further interviews with Bergdahl and others, Rinckey told NBC News — among them: "How did you disappear? How were you captured? What was your state of mind?"
That last question is likely to be critical. "It doesn't sound very logical that someone would walk away from his fire base" carrying only a compass and a single bottle of water, Rinckey said, which raises not only the issue of "did he have a mental health breakdown?" but also the question of his fitness for duty now after having been a Taliban prisoner of war for five years.
What Happens Next?
Dahl is early in his investigation, and he's likely to follow up with further questioning of Bergdahl, fellow members of his unit, commanders and others. Once he's done, he'll make a series of recommendations up the chain of command:
- He can find no wrongdoing, recommending no action and Bergdahl's permanent return to active duty.
- He can find that Bergdahl committed an offense but that it's best handled by administrative actions intended to be corrective, not punitive, like counseling, reassignment, extra instruction or a reprimand.
- He can find that Bergdahl committed an offense best addressed by a so-called non-judicial punishment, like a reduction in rank, loss of pay, confinement for no more than a year or involuntary separation from the Army.
- He can recommend a court-martial. That would potentially be very serious, because the maximum penalty for desertion in a time of war is the death penalty.
"I don't think Sergeant Bergdahl is going to face the death penalty," Rinckey said, because "there's some kind of grayness surrounding his disappearance" and disagreement over whether Bergdahl's service in Afghanistan was in a "time of war."
In the meantime, Bergdahl remains an active-duty soldier, manning a desk in Texas.
First published August 6 2014, 12:42 AM