WASHINGTON - Army Sgt. Bowe Bergdahl, who was held captive by the Taliban for five years and freed in exchange for five detainees in Guantanamo Bay, will face charges of desertion and misbehavior before the enemy in a general court-martial, the Army announced on Monday.
If convicted, Bergdahl could get life in prison on the misbehavior charge and up to five years for desertion. He also could be dishonorably discharged, reduced in rank and made to forfeit all pay.
Bergdahl, 29, of Hailey, Idaho, walked off his post in eastern Afghanistan's Paktika province on June 30, 2009. He was released in the prisoner swap in late May 2014 that touched off a firestorm of criticism, with some in Congress accusing President Barack Obama of jeopardizing the safety of a nation for a deserter.
A date for an arraignment hearing at Fort Bragg, North Carolina, will be announced later.
Bergdahl's attorney, Eugene Fidell, said the convening authority - a high-ranking officer charged with deciding whether evidence warrants a court-martial - did not follow the advice of a preliminary hearing officer.
Lt. Col. Mark Visger had recommended that Bergdahl's case be referred to a special court martial, which is a misdemeanor-level forum. That limits the maximum punishment to reduction in rank, a bad-conduct discharge and a term of up to a year in prison.
The U.S. Army Forces Command charged Bergdahl on March 25 with "desertion with intent to shirk important or hazardous duty" and "misbehavior before the enemy by endangering the safety of a command, unit or place."
Misbehavior before the enemy was used hundreds of times during World War II, but scholars say its use appears to have dwindled in conflicts since then. Legal databases and media accounts turn up only a few misbehavior cases since 2001 when fighting began in Afghanistan, followed by Iraq less than two years later. By contrast, statistics show the U.S. Army prosecuted about 1,900 desertion cases between 2001 and the end of 2014.
Fidell has argued his client is being charged twice for the same action, saying in a previous television interview that "it's unfortunate that someone got creative in drafting the charge sheet and figured out two ways to charge the same thing."
Separately, Fidell, a military justice expert who is also a visiting lecturer at Yale Law School, complained about political figures who have made derogatory statements about Bergdahl.
Fidell asked that Republican presidential candidate Donald Trump "cease his prejudicial months-long campaign of defamation against our client. In October, Trump called Bergdahl a "traitor, a no-good traitor, who should have been executed."
Fidell also asked the House and Senate Armed Services committees to avoid further statements "that prejudice our client's right to a fair trial." The House committee last week issued a 98-page report criticizing the Obama administration's decision to swap the five former Taliban leaders for Bergdahl.
Fidell pointed to the fifth page of the report that said the committee would remain abreast of the disciplinary process and ensure that "Sgt. Bergdahl's behavior is adjudicated as required." Fidell said he read that as a call to "hammer" Bergdahl for his actions.
The Army's investigation of Bergdahl portrayed him as a cock-eyed idealist, an image he seemed to confirm in his own words. The solider the Army has charged with desertion and some have branded a traitor, told an interviewer he abandoned his post in an effort to draw attention to problems within his own unit.
"All I was seeing was basically, leadership failure to the point that the lives of the guys standing next to me, were, literally, from what I could see, in danger of something seriously going wrong and somebody being killed," Bergdahl said in the podcast.
"That was a gutsy move," said the interviewer Mark Boal.
"Gutsy, but still stupid," Bergdahl responded.
Bergdahl said it wasn't long after he walked away that he realized how stupid.
"Twenty minutes out, I'm going 'good grief. I'm way over my head'... suddenly it really starts to sink in," Bergdahl said. "I really did something bad. Well, not bad, but I really did something serious."
It took the Taliban about a day to find him.
"I couldn't do anything against six or seven guys with AK-47s, and they pulled up and that was it," Bergdahl said.
Bergdahl spent the next five years as a prisoner of the Taliban, much of it in a pitch-black room.
"To the point where you just want to scream, and like I can't scream. I can't risk that, so it's like you're standing there, screaming in your mind," Bergdahl recalls.
Bergdahl's stunt backfired not only on himself, but also on his fellow soldiers. Their lives were put in greater jeopardy by having to spend the next several weeks hunting for him.