Did 'Serial' get Bowe Bergdahl court-martialed?

To one former military lawyer, Bowe Bergdahl's statements to the 'Serial' podcast might have made it a 'no-brainer' for the Army to court-martial him Monday.

The Army announced Monday that it will recommend that the charges against Sgt. Bowe Bergdahl proceed to court-martial.

Sergeant Bergdahl, who was held captive by the Taliban for five years after he walked away from his combat outpost in Afghanistan in 2009, has been charged by the Army with desertion and “misbehavior before the enemy,” which could carry with it a life sentence should he be found guilty.

The chances of that happening have increased since his case was thrust into the spotlight last week, says a former United States military lawyer. The smash hit podcast “Serial” picked up Bergdahl’s story as the subject of its second season, which premiered Dec. 10.

Indeed, some of the details that Bergdahl provided on a recording could have pushed the Army over the edge in seeking a court-martial, says Eric Montalvo, a former lawyer for the Marine Corps. 

“There are certain basic rules in defense. The first and most important rule is that the client just needs to be quiet,” says Mr. Montalvo, who successfully represented Guantánamo Bay detainee Mohamed Jawad, who was ordered released after six years at Gitmo after a military commission ruled that his confession was coerced. 

“When [Berghdahl] says words to the effect of, ‘I did it because’ – well, you’ve just said you did it,” he adds. “We don’t care why you did it, buddy – the crime is that you did it.”

In the  podcast, Bergdahl is speaking on the telephone with Mark Boal, who wrote the screenplay for the film, “The Hurt Locker.”  With Bergdahl’s permission, Mr. Boal shared tapes of their conversations with “Serial.” 

Bergdahl explains to Boal that in leaving his small outpost, he was hoping to create what is known as a DUSTWUN (pronounced “dust one”), or Duty Status Whereabouts Unknown, which is the Army equivalent of the Navy’s “man overboard” distress call.  

As the podcast explains, Bergdahl was trying to create a crisis in order to call attention to what he saw as another crisis: bad leadership within his unit. Bergdahl's hope was that he would become such a person of interest that his leaders would have to listen to him. He could have an audience with a general and explain his plight, as the podcast puts it.

Bergdahl says he assumed he would go to jail, for a short time. “That’s what I figured they’d do,” he said. “I figured I’d stay in there until people got the situation cleared up.”

By cleared up, he meant he was “fully confident” that when the situation was investigated, “people would understand that I was right.” In other words, they, too, would become convinced that the bad leadership in his unit could have led to deaths of soldiers. 

“The idea was, I’d rather be sitting in Leavenworth [military prison] than standing over the body” of an Army buddy – a death, as he saw it, that could be caused by his failure to act.

While Army officials may urge compassion in the sentencing phase of his trial, Bergdahl will be facing a conviction based on his statements on the “Serial” podcast, says Montalvo. 

“If I were the prosecutor and I heard that, I’d be in no-brainer mode. All I have to do is roll that beautiful ... footage, and we’re done. He had a plan, and he executed on that plan.”

It was a decision Bergdahl came to regret quickly.

Just 20 minutes after leaving his outpost, “I’m going, ‘Good grief, I’m in over my head,’ ” he told Boal.

Part of that was the realization that he was going to be in a great deal of trouble, Bergdahl admitted. He was thinking, “they’re going to hit me with everything they had. I knew that was going to happen, but suddenly, it really starts to sink in that I’ve really done something bad – well, not bad, but really done something serious.”

He had five years in Taliban captivity to contemplate it. 

It is still “quite possible” that the Army could decide to discharge Bergdahl before his case reaches a court-martial, says retired Maj. Gen. Charles Dunlap, who previously served as deputy judge advocate general for the US Air Force. 

“There are aspects of the case that may be unflattering to the Army, and Bergdahl did apparently suffer in captivity,” says Mr. Dunlap, now a professor at Duke Law School. 

“I could also see the Army continuing to trial,” he adds. “Soldiers need to see that justice is being done – whatever that may be here – and having as many facts as possible can help achieve that aim.”