Bowe Bergdahl, charged with desertion and more, details Taliban captivity

Reporting from WASHINGTON —  The Obama administration’s decision last year to swap Army Sgt. Bowe Bergdahl for five Taliban prisoners generated an intense political battle almost from the first day.

On Wednesday, the 28-year-old Bergdahl was charged with desertion and “misbehavior before the enemy,” setting the stage for a court-martial that could intensify that fight. A trial would pit prosecutors’ claims that Bergdahl abandoned his post in Afghanistan after growing disenchanted with the military against the defense’s portrait of him as a troubled but loyal soldier who repeatedly tried to escape his captors.

Bergdahl’s defense lawyer responded to the charges by releasing the young soldier’s personal account of five years in captivity and questioning whether he could receive a fair trial given the intense political battle surrounding the prisoner swap.

In the statement, Bergdahl described being chained or held in a cage for long periods, his body racked with sickness and sores, while his captors beat him and threatened death. The account provided the public’s first opportunity to hear from Bergdahl, who made no public statement when he was released or in the year since.

“After the first year they put me in a cage,” Bergdahl wrote. “In there my hands [were] always handcuffed … my feet [were] usually chained … I was kept in constant isolation during the entire five years [with] absolutely no understanding of anything that was happening outside the door.”

Bergdahl vanished on June 30, 2009, when he left his base in eastern Afghanistan and was captured and eventually turned over to members of the Haqqani network, which operates in Pakistan and Afghanistan.

The swap of Bergdahl for five senior Taliban prisoners held at Guantanamo Bay has become a major cause among many conservatives who denounced the deal as a concession to terrorists. A trial would reignite the debate over whether Bergdahl was worthy of being redeemed and whether the price was too high.

The five Taliban have had to remain in Qatar under a one-year travel ban, but critics of the swap have warned that they could eventually return to the battlefield in Afghanistan and Pakistan.

President Obama has defended the swap, saying that he would not apologize for bringing Bergdahl home.

“We have a basic principle: We do not leave anybody wearing the American uniform behind,” he said last June.

After Bergdahl’s return, Susan Rice, Obama’s national security advisor, said that Bergdahl had served with “honor and distinction,” a comment that she said later referred to his decision to enlist at a time of war.

Defense lawyers and military justice experts said both sides may have strong incentives to resolve the case with a plea agreement that could result in Bergdahl’s acknowledging guilt but allow him to avoid prison time and leave the Army.

“Even if he is convicted of desertion and receives the five-year sentence, there’s a good argument to be made by his lawyers that he deserves credit for time served as prisoner of the Taliban,” said Jeffrey K. Walker, a law professor at St. John’s University School of Law and an expert in military law.

“He may end up serving no time at all.”

James Culp, a defense attorney who specializes in military cases, predicted that Bergdahl’s prosecution was likely to unfold much the way the Army handled the case a decade ago of a sergeant, Charles Jenkins, who deserted his unit in South Korea in 1965 and spent four decades in North Korea.

In that case, said Culp, who was Jenkins’ defense attorney, the sergeant ultimately agreed to plead guilty at a court-martial in return for serving 25 days in jail and agreeing to discuss his time in North Korea with military intelligence analysts.

“I think Bergdahl has as good a chance or better than Sgt. Jenkins” of avoiding a long sentence, Culp said.

“He probably has lot of good intelligence to share if he has incentive to do that,” Culp added.

The next step in the case will be a hearing, expected to take place next month at Ft. Sam Houston in San Antonio, to determine whether enough evidence exists to warrant a court-martial. The hearing could lead to a trial or to the dismissal of the charges, the Army statement said.

There has been no discussion of a plea, said Bergdahl’s civilian lawyer, Eugene R. Fidell.

Defense lawyers have made it clear that if the Army proceeds with a court-martial, the defense team will make the political controversy surrounding the case a major issue.

Bergdahl’s case “has generated more sustained publicity than any military justice case in a least the last quarter-century,” Fidell wrote in a letter to Gen. Mark Milley, the military official overseeing the matter.

The military has been so concerned about Bergdahl’s safety that he is required to have two escorts whenever he leaves the base in Texas where he has been living, “to prevent third parties from injuring him,” Fidell wrote, decrying a “lynch mob atmosphere” in which Bergdahl had been “vilified.”

He described Bergdahl as “a truthful person, albeit a naive and at times unrealistic one.”

The defense does not dispute that Bergdahl was absent without leave when he left his post, but argues that “he did not intend to remain away from the Army permanently.”

Bergdahl’s goal, Fidell said, “was to bring disturbing circumstances to the attention” of Army generals. The letter does not explain what was bothering Bergdahl or how he thought his goal could be accomplished by leaving his base.

In charging Bergdahl with desertion, however, rather than the lesser offense of being absent without leave, the Army opted for the most serious charge available. Under the Uniform Code of Military Justice, a desertion conviction can result in a sentence of up to five years in prison, forfeiture of pay and dishonorable discharge, the Army said.

The other charge, misbehavior before the enemy, can be brought against a soldier if he or she is alleged to have run away, abandoned military property or “through disobedience, neglect or intentional misconduct endanger[ed] the safety” of a military unit. It carries a potential sentence of life in prison.

The military mounted a massive search for Bergdahl in the weeks after he disappeared, a search that some members of his unit have said put the lives of other soldiers at risk.

In his statement, Bergdahl said he attempted to escape 12 times, once within hours of being captured and another time in which he managed to elude recapture for nearly nine days.

“Without food and only putrid water to drink, my body failed on top of a short mountain,” he said. “After I came to in the dying gray light of the evening, I was found by a large Taliban searching group.”

For the first three months of his captivity, Bergdahl said, he was chained in a spread-eagle position on a bed and fed nothing but noodles or rice and water. His captors beat the bottoms of his feet with a copper cable, he said.

“Due to sickness, weather and little food and water … my body continued a steady decline,” he said.

He added: “I was kept in constant isolation during the entire five years, with little or no understanding of time.... I was continuously shown Taliban videos. Told I was going to be executed. Told I was never going back. Told I would leave the next day and the next day told I would be there for 30 years.”

Since his return, Bergdahl has been assigned to Joint Base San Antonio-Ft. Sam Houston in Texas, but he has stayed out of public view.

Bergdahl remains “on duty” and “is not in pretrial confinement at this time,” Army spokesman James Hinnant said.

david.cloud@latimes.com

Twitter: @DavidCloudLAT