Sgt. Bowe Bergdahl dodged a legal bullet Wednesday when the Army charged him with desertion but avoided accusing him of a crime that carries the death penalty.
The Army also charged Bergdahl with endangering the safety of other soldiers and improper conduct with the Taliban, which captured him shortly after he left his eastern Afghanistan post on June 30, 2009, and then held him for almost five years.
The charges came almost 10 months after one of the most controversial decisions of President Barack Obama’s White House tenure.
Obama approved a deal that freed Bergdahl on May 31, 2014, in exchange for the release of five senior Taliban militants from the U.S. military prison at Guantanamo Bay, Cuba.
Sen. Lindsey Graham, a South Carolina Republican who is weighing a presidential run, said Wednesday he has “nothing but disgust” for the exchange.
Graham, a military lawyer who has served on active duty in Afghanistan, said he’s “very proud of the military justice system” and urged Americans not to prejudge Bergdahl.
If convicted, the maximum sentence Bergdahl, now 29, could receive is life in prison. That sentence is tied not to the desertion charge but to the charge that he put his unit at risk by abandoning his post in Afghanistan’s Paktika province near the Pakistan border.
Former platoon mates of Bergdahl, the only American captive during the nearly 13 1/2-year Afghanistan war, have claimed that as many as six solders died during the extensive search for the Idaho native following his disappearance.
Eugene Fidell, a Yale University military law professor who is representing Bergdahl, said the desertion charge did not surprise him, but he acknowledged that he had not expected the charge of having misbehaved while in Taliban captivity.
Next up for Bergdahl will be a preliminary hearing under Article 32 of the military legal code, which is often compared to a grand jury hearing of evidence supporting civilian criminal charges.
“We are just heading into an Article 32 investigation,” Fidell told McClatchy. “The convening authority would still have to make a decision what to do based on the Article 32 report. So this is still a very preliminary juncture.”
Retired Army Brig. Gen. Jack Nevin, a former military lawyer who served as chief judge of the Army Court of Criminal Appeals, said the Army has not executed a soldier since 1961 and that the men on death row at Fort Leavenworth, Kan., were convicted of having committed violent crimes.
“This is not a violent crime,” Nevin said of Bergdahl’s alleged desertion.
“Perhaps the investigation revealed that while he walked away and even had an intent to stay away, he (later) changed his mind and wanted to return but was prevented (by the Taliban) from doing so,” Nevin told McClatchy.
Nevin maintains contact with military lawyers at Joint Base Lewis-McChord in Tacoma, Wash. Gen. Kenneth Dahl, who is based there, led the Army’s probe of Bergdahl with as many as 20 soldiers helping him.
“I don’t know anything about the specifics, but I understand it was incredibly thorough,” Nevin said.
In Hailey, Idaho, Bergdahl’s hometown, reaction to the charges was muted.
“When he was released, we acknowledged that he might have to face military charges,” Mayor Fritz Haemmerle told McClatchy. “We trust that those charges will be fairly evaluated.”
Town leaders had planned a celebratory rally soon after Bergdahl’s release, but they canceled it in the wake of fierce criticism of the deal that freed him from mainly Republican lawmakers, some military veterans and a few members of his former platoon.
“There are no yellow ribbons up and down our main street,” Haemmerle said Wednesday.
House Speaker John Boehner said the deal that secured Bergdahl’s freedom has made the United States less safe.
“Every American is innocent until proven guilty, and we all wanted to bring Sgt. Bergdahl home,” said Boehner. “But my chief concern remains President Obama’s decision to release five hardened terrorists, with no guarantees that they won’t return to the battlefield.”
Graham said flatly that the five freed Taliban, who under an agreement with the government of Afghanistan must remain in Qatar for one year following their release, “are going to go back to the fight.”
Col. Daniel J.W. King, a spokesman for the U.S. Army Forces Command, did not take questions from reporters after announcing the charges in a short statement at Fort Bragg, N.C.
“Sgt. Bergdahl is charged under the Uniform Code of Military Justice with one count of Article 85, desertion with intent to shirk important or hazardous duty, and one count of Article 99, misbehavior before the enemy by endangering the safety of a command, unit or place,” King said.
The fact that Bergdahl is now part of a formal military criminal proceeding precluded King from taking questions from reporters or saying more about the case than his prepared statement, he said.
Mainly Republican members of Congress have accused Obama of negotiating with terrorists to secure Bergdahl’s release and of violating a law requiring the president to give Congress at least 30 days’ notice before any Guantanamo detainees are freed.
The five Taliban released last year included the jihadist group’s former deputy defense and intelligence ministers when the Taliban ruled Afghanistan before the October 2001 U.S. invasion.
Then-Defense Secretary Chuck Hagel and the nation’s top military commanders defended the deal as the fulfillment of a sacred commitment to leave no soldier captured or fallen behind enemy lines.
Bergdahl’s hearing will take place at Fort Sam Houston, Texas, where Bergdahl received medical treatment and underwent a reintegration program last year after his return to the United States.
Bergdahl, who is now posted at the San Antonio base in a desk job, could eventually face a court-martial.
John Sowell of The Idaho Statesman and Lesley Clark, Hannah Allam, Michael Doyle and Tish Wells of the Washington Bureau contributed to this report.