A top Army commander on Monday ordered that Sgt. Bowe Bergdahl face a court-martial on charges of desertion and endangering troops stemming from his decision to leave his outpost in 2009, prompting a huge manhunt in the wilds of eastern Afghanistan and landing him in nearly five years of harsh Taliban captivity.
The decision by Gen. Robert B. Abrams, head of Army Forces Command at Fort Bragg, North Carolina, means that Bergdahl, 29, faces a possible life sentence, a far more serious penalty than had been recommended by the Army's own investigating officer, Lt. Gen. Kenneth Dahl, who testified at the sergeant's preliminary hearing in September that a jail sentence would be "inappropriate."
According to Bergdahl's defense lawyers, the Army lawyer who presided over the preliminary hearing also recommended that he face neither jail time nor a punitive discharge and that he go before an intermediate tribunal known as a "special court-martial" where the most severe penalty possible would be a year of confinement.
Yet Monday's decision rejecting that recommendation means that Bergdahl now faces a maximum five-year penalty if ultimately convicted by a military jury of desertion as well as potential life imprisonment on the more serious charge of misbehavior before the enemy, which in this case means endangering the troops who were sent to search for him after he disappeared.
The case against Bergdahl is likely to remain a staple of attacks by Republicans who say it emphasizes President Barack Obama's weakness on foreign policy. The presidential candidate Donald Trump has called the sergeant a "traitor" who should be executed.
Sen. John McCain, R-Ariz., chairman of the Armed Services Committee, said in October that Bergdahl was "clearly a deserter" and he vowed to hold hearings if he was not punished. And last week, House Republicans issued a report portraying as reckless and illegal Obama's decision in May 2014 to swap Bergdahl for five Taliban detainees who were being held at Guantánamo Bay, Cuba.
The Army did not elaborate on Monday's decision by Abrams, or why he decided that Bergdahl should face the potential for a far more serious punishment than what the two independent Army fact-finders had recommended. A spokesman for Army Forces Command at Fort Bragg noted in an email that recommendations made by preliminary hearing officers "are advisory in nature."
No date has been set for Bergdahl's next court hearing, which will be held at Fort Bragg, the Army said in a statement. Bergdahl is currently assigned to the Army's Joint Base San Antonio-Fort Sam Houston, the site of his preliminary hearing in September.
In a terse statement after the decision, Bergdahl's chief defense lawyer, Eugene R. Fidell, said Abrams "did not follow the advice of the preliminary hearing officer who heard the witnesses," and Fidell added that he "had hoped the case would not go in this direction."
He also criticized some politicians who have spoken out, saying they have inflamed the case and infringed on Bergdahl's protections under the law.
"We again ask that Donald Trump cease his prejudicial monthslong campaign of defamation against our client," Fidell said in a statement. "We also ask that the House and Senate Armed Services Committees avoid any further statements or actions that prejudice our client's right to a fair trial."
Abrams' decision came just days after Bergdahl was heard for the first time in his own voice publicly explaining why he left his base, in taped interviews that were broadcast by the "Serial" podcast last week. In the interviews, which were recorded by Mark Boal, a screenwriter and producer, and provided to "Serial," Bergdahl said he realized within 20 minutes of leaving that he had done "something serious."
In the interviews, he told the same story that he had described to Dahl about why he left the outpost: because he wanted to cause a crisis by hiking to another base 18 miles away that would allow him to have an audience with a senior Army commander where he could outline what he felt were serious leadership problems that were endangering his unit.
Bergdahl told Boal that during his hike he had also decided to surveil Taliban fighters emplacing improvised explosive devices that could be used to kill U.S. soldiers, and to turn that information over to commanders when he arrived at the other base. He said that he "was trying to prove to the world" that he was a top soldier and that in some sense he even wanted to emulate someone like Jason Bourne, the spy-movie character.
The decision to swap detainees for Bergdahl drew condemnation from Republicans who argued that it would embolden the Taliban to kidnap other Americans and that the trade was done without the required notification of Congress. Republicans and some members of Bergdahl's unit also described the sergeant as a defector, and said that a half-dozen or more U.S. troops had died searching for him.
But in his testimony, Dahl — who was recently promoted from major general to lieutenant general — said that no troops had died specifically searching for Bergdahl and that no evidence was found to support claims that he intended to walk to China or India or that he was a Taliban sympathizer.
At the Texas hearing, an Army prosecutor, Maj. Margaret Kurz, described a frantic but fruitless search for Bergdahl in the weeks after he disappeared.
"For 45 days, thousands of soldiers toiled in the heat, dirt, misery and sweat with almost no rest, little water and little food to find the accused," Kurz said. "Fatigued and growing disheartened, they search for the accused knowing he left deliberately."
The prosecution's witnesses included Bergdahl's former platoon leader and company and battalion commanders, who all recounted the scramble to find the soldier after he was reported missing early on June 30, 2009.
His former platoon leader, Capt. John Billings, testified about his "utter disbelief that I couldn't find one of my own men."
He and the other commanders said soldiers searched almost nonstop, never knowing when the ordeal would end, while their underlying mission to support Afghan security forces fell by the wayside. The manhunt involved thousands of troops across thousands of square miles.
Dahl described Bergdahl as a truthful but delusional soldier, who identified with John Galt, the hero of Ayn Rand's "Atlas Shrugged." He also said that Bergdahl's worries about severe problems in his unit were unwarranted but that he found Bergdahl truthful and that his concerns were sincerely held.
Another defense witness, Terrence Russell, who debriefed Bergdahl after his release, testified that the sergeant had suffered more in captivity than any American since Vietnam, including beatings with rubber hoses and copper cables, and uncontrollable diarrhea for more than three years.
The defense team, led by Fidell, argued that the worst thing Bergdahl had done was go AWOL for one day — since he was captured within hours of leaving, and because Dahl determined he had intended to hike to another base.
Fidell, who teaches military justice at Yale Law School, also argued that Bergdahl did everything a U.S. serviceman was supposed to do in captivity, trying to escape numerous times despite the harsh treatment the attempts brought him, and never revealing secrets.
He also suggested the Army was partly responsible, because it enlisted Bergdahl even though he had washed-out of Coast Guard basic training because of an "adjustment disorder with depression."