Military hearing on Bergdahl desertion charges begins

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Prosecutors Slap Sgt. Bergdahl With Rare Charge

HOUSTON (AP) -- A hearing to decide if Sgt. Bowe Bergdahl should face a military trial for leaving his post in Afghanistan began Thursday - proceedings that his lead lawyer said would reveal details of what led to the Idaho native's disappearance in 2009.

Legal experts said they expected Bergdahl's lawyers to argue during the Article 32 hearing that his years of being held captive by the Taliban were punishment enough. The hearing to determine if he will face a court-martial is taking place at Fort Sam Houston in San Antonio, where Bergdahl has been stationed since returning to the U.S. last year.

SEE ALSO: Bergdahl lawyer wants interrogation made public

Before disappearing from his post in southeastern Afghanistan on June 30, 2009, Bergdahl had expressed opposition to the war in general and misgivings about his own role in it.

His lead attorney, Eugene Fidell, has cited an Army investigation that determined Bergdahl left his post, but not the Army, and that his "specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer."

Fidell said he plans to call witnesses, but he declined to say whether Bergdahl would be among them or to disclose further details about his strategy.

Military prosecutors declined to discuss the hearing.

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Military hearing on Bergdahl desertion charges begins
This undated image provided by the U.S. Army shows Sgt. Bowe Bergdahl. U.S. officials have received a new video of Bergdahl that they believe was taken within the last month, showing that the soldier is alive. The video came to light several days ago, said one senior defense official. Another official said that Bergdahl appeared in poorer health than previous videos, showing the signs of his nearly five years in captivity. Bergdahl, who is from Idaho, was taken prisoner in Afghanistan on June 30, 2009. In a statement released Wednesday, Bergdahl’s family said that they learned today, Jan. 15, 2014, about the video. (AP Photo/U.S. Army)
File - In this file image taken from video obtained from Voice Of Jihad Website, which has been authenticated based on its contents and other AP reporting, Sgt. Bowe Bergdahl, sits in a vehicle guarded by the Taliban in eastern Afghanistan. The U.S. military says it will make an announcement Wednesday on the case against Sgt. Bowe Bergdahl, the soldier who left his post in Afghanistan and was held by the Taliban for five years before being released in a prisoner exchange. (AP Photo/Voice Of Jihad Website via AP video, File)
In this image taken from video obtained from Voice Of Jihad Website, which has been authenticated based on its contents and other AP reporting, Sgt. Bowe Bergdahl, right, stands with a Taliban fighter in eastern Afghanistan. The Taliban on Wednesday, June 4, 2014, released a video showing the handover of Bergdahl to U.S. forces in eastern Afghanistan, touting the swap of the American soldier for five Taliban detainees from Guantanamo as a significant achievement for the insurgents. Bergdahl was freed on Saturday after five years in captivity, and exchanged for the five Guantanamo detainees who were flown to Qatar, a tiny Gulf Arab country which has served as a mediator in the negotiations for the swap. (AP Photo/Voice Of Jihad Website via AP video)
FILE - This undated photo provided by the Bergdahl family and released by the Idaho National Guard shows Pfc. Bowe R. Bergdahl, 23, of Ketchum, Idaho. A Taliban spokesman, Shaheen Suhail, in an exclusive telephone interview with The Associated Press from the newly opened Taliban offices in Doha, Qatar, said Thursday, that they are ready to hand over U.S. soldier Pfc. Bowe R. Bergdahl held captive since 2009 in exchange for five of their senior operatives being held at the Guantanamo Bay prison. The U.S. is scrambling to save talks with the Taliban after angry complaints from Afghanistan President Hamid Karzai. (AP Photo/The Bergdahl Family, File)
In this image taken from video obtained from Voice Of Jihad Website, which has been authenticated based on its contents and other AP reporting, A Taliban fighter speaks to Sgt. Bowe Bergdahl, in eastern Afghanistan. The Taliban on Wednesday, June 4, 2014 released a video showing the handover of Bergdahl to U.S. forces in eastern Afghanistan, touting the swap of the American soldier for five Taliban detainees from Guantanamo as a significant achievement for the insurgents. (AP Photo/Voice Of Jihad Website via AP video)
In this image taken from video obtained from Voice Of Jihad Website, which has been authenticated based on its contents and other AP reporting, Sgt. Bowe Bergdahl sits in a vehicle guarded by the Taliban in eastern Afghanistan. The Taliban have released a video showing the handover of Bergdahl to U.S. forces in eastern Afghanistan. The video, emailed to media on Wednesday, shows Bergdahl in traditional Afghan clothing sitting in a pickup truck parked on a hillside. More than a dozen Taliban fighters with machine guns stand around the truck and on the hillside. (AP Photo/Voice Of Jihad Website via AP video)
In this image taken from video obtained from Voice Of Jihad Website, which has been authenticated based on its contents and other AP reporting, Men in civilian clothing lead Sgt. Bowe Bergdahl, in white, towards a helicopter in eastern Afghanistan. The Taliban on Wednesday, June 4, 2014 released a video showing the handover of Bergdahl to U.S. forces in eastern Afghanistan, touting the swap of the American soldier for five Taliban detainees from Guantanamo as a significant achievement for the insurgents. (AP Photo/Voice Of Jihad Website via AP video)
Jani and Bob Bergdahl speak to the media during a news conference at Gowen Field in Boise, Idaho, on Sunday, June 1, 2014. Their son, Sgt. Bowe Bergdahl is back in American hands, freed for five Guantanamo terrorism detainees. (AP Photo/Otto Kitsinger)
SAN ANTONIO, TX - JUNE 13: (From left) Colonel Bradley Poppen, Ph.D., Major General Joseph P. DiSalvo, and Colonel Ronald N. Wool deliver a press conference at the Fort Sam Houston Golf Course July 13, 2014 in San Antonio, Texas. They are reporting on Sgt. Bowe Bergdahl, his return to the United States, and reintegration at Brooke Army Medical Center after being a prison of war under Taliban captivity. (Photo by Drew Anthony Smith/Getty Images)
In this image from video, people are greeted on arrival at Lackland Air Force Base near San Antonio, early Friday morning June 13, 2014. Bowe Bergdahl, the Army sergeant who has been recovering in Germany after five years as a Taliban captive, returned to the United States on this plane to continue his medical treatment. (AP Photo/Manis Calco)
Jani Bergdahl looks to Bob Bergdahl, as he speaks in the Rose Garden of the White House in Washington, Saturday, May 31, 2014, about the release of their son, U.S. Army Sgt. Bowe Bergdahl, during a news conference with President Barack Obama. Bergdahl, 28, had been held prisoner by the Taliban since June 30, 2009. He was handed over to U.S. special forces by the Taliban in exchange for the release of five Afghan detainees held by the United States. (AP Photo/Carolyn Kaster)
WASHINGTON, DC - MAY 31: President Barack Obama walks with the parents of Sgt. Bowe Bergdahl, Jani Bergdahl (L) and Bob Bergdahl (R) back to the Oval Office after making a statement regarding the release of Sgt. Bergdahl from captivity May 31, 2014 in the Rose Garden at the White House in Washington, DC. Sgt. Bowe Bergdahl was held captive by militants for almost five years during the war in Afghanistan. (Photo by J.H. Owen-Pool/Getty Images)
Bob Bergdahl, the father of freed US soldier Bowe Bergdahl, speaks following the release of his son, US soldier Bowe Bergdahl, in the Rose Garden of the White House on May 31, 2014 in Washington, DC. US President Barack Obama and the Bergdahl's spoke after the release of Bowe Bergdahl by the Taliban in Afghanistan.  MANDEL NGAN/AFP/Getty Images
Supporters of freed prisoner of war US Army soldier Bowe Bergdahl including representatives of the ANSWER Coalition, CODEPINK and March Forward, rally in front of the White House in Washington, DC, June 10, 2014, to welcome Bergdahl home after 5-years of being held by the Taliban in Afghanistan. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Brooke Army Medical Center is shown Friday, June 13, 2014, in San Antonio. Bowe Bergdahl, the Army sergeant who has been recovering in Germany after five years as a Taliban captive, returned to the United States early Friday to continue his medical treatment at the facility. (AP Photo/David J. Phillip)
Vehicles drive toward the entrance of Brooke Army Medical Center Friday, June 13, 2014, in San Antonio. Bowe Bergdahl, the Army sergeant who has been recovering in Germany after five years as a Taliban captive, returned to the United States early Friday to continue his medical treatment at the facility. (AP Photo/David J. Phillip)
Col. Bradley Poppen answers a question during a news conference regarding Sgt. Bowe Bergdahl and the Phase III Reintegration process, Friday, June 13, 2014, in San Antonio, Texas. Bergdahl, the Army sergeant who has been recovering in Germany after five years as a Taliban captive, returned to the United States early Friday to continue his medical treatment at Brooke Army Medical Center in San Antonio. (AP Photo/David J. Phillip)
WASHINGTON, DC - JUNE 11: U.S. Defense Secretary Chuck Hagel testifies before the House Armed Services Committee about the about the prisoner exchange that freed Army Sgt. Bowe Bergdahl in the Rayburn House Office Building on Capitol Hill June 11, 2014 in Washington, DC. The trade of Bergdahl for five senior Taliban officials has angered some members of Congress because they were not informed of the swap beforehand. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - JUNE 11: U.S. Secretary of Defense Chuck Hagel listens during a hearing before the House Armed Services Committee June 11, 2014 on Capitol Hill in Washington, DC. The committee held the hearing to examine the exchange of five Taliban prisoners from Guantanamo Bay for the release of U.S. Army Sergeant Bowe Bergdahl who had been held for almost five years by the insurgents in Afghanistan. (Photo by Alex Wong/Getty Images)
Col. Ronald Wool answers a question about Sgt. Bowe Bergdahl's food requests, during a news conference Friday, June 13, 2014, in San Antonio. Bergdahl, the Army sergeant who has been recovering in Germany after five years as a Taliban captive, returned to the United States early Friday to continue his medical treatment at Brooke Army Medical Center in San Antonio. Wool is in charge of Bergdahl’s medical care while at the facility. (AP Photo/David J. Phillip)
Gulf War veteran Ron Coumerilh wears a sticker to support captive U.S. Army Sgt. Bowe Bergdahl at the "Bring Bowe Back" celebration in Hailey, Idaho, Saturday, June 22, 2013. Hundreds of activists for missing service members gathered in a small Idaho town Saturday to hear the parents of the only known U.S. prisoner of war speak just days after his Taliban captors announced they want to exchange him for prisoners being held at Guantanamo Bay. (AP Photo/Jae C. Hong)
HAILEY, ID - JUNE 01: A sign announcing the release of Sgt. Bowe Bergdahl sits in the window of the Hailey Paint and Supply store on Main Street June 1, 2014 in Hailey, Idaho. Sgt. Bergdahl was captured in Afghanistan in 2009 while serving with U.S. Armys 501st Parachute Infantry Regiment in Paktika Province. Yesterday he was released after a swap for 5 prisoners being held at Guantanamo Bay was arranged. Bergdahl was considered the only U.S. prisoner of war held in Afghanistan. (Photo by Scott Olson/Getty Images)
This Friday, June 21, 2013 photo shows a yellow ribbon tied to a tree and a banner honoring captive U.S. Army Sgt. Bowe Bergdahl in Hailey, Idaho. The Afghan war, and the taking of Bergdahl, may have long faded from the minds of most Americans. But for this community in the shadow of Idaho's Sawtooth Mountains, Bowe Bergdahl and his family's fight to free him are "omnipresent," said local Wesley Deklotz. "It's a whole community of people that are keeping him in their thoughts." (AP Photo/Jae C. Hong)
A tattered sign supporting U.S. Army Sgt. Bowe Bergdahl, who is currently being held captive by the Taliban in Afghanistan, hangs outside a coffee shop in Hailey, Idaho, Friday, June 21, 2013. The Afghan war, and the taking of this POW, may have long faded from the minds of most Americans. But for this community in the shadow of Idaho's Sawtooth Mountains, Bowe Bergdahl and his family's fight to free him are "omnipresent," said local Wesley Deklotz. "It's a whole community of people that are keeping him in their thoughts." (AP Photo/Jae C. Hong)
The image of Army Sgt. Bowe Bergdahl of Hailey, Idaho, who is being held captive in Afghanistan, is worn by an audience member as he father Bob, not pictured, speaks at the the annual Rolling Thunder rally for POW/MIA awareness, in Washington, Sunday, May 27, 2012. (AP Photo/Charles Dharapak)
A POW-MIA flag flies in front of a pharmacy displaying a sign in support of bringing home U.S. Army Sgt. Bowe Bergdahl, who is currently being held captive by the Taliban in Afghanistan, in Hailey, Idaho, Friday, June 21, 2013. The Afghan war, and the taking of this POW, may have long faded from the minds of most Americans. But for this community in the shadow of Idaho's Sawtooth Mountains, Bowe Bergdahl and his family's fight to free him are "omnipresent," said local Wesley Deklotz. "It's a whole community of people that are keeping him in their thoughts." (AP Photo/Jae C. Hong)
A "Bring Bowe Back" sign honoring captive U.S. Army Sgt. Bowe Bergdahl is seen through a POW-MIA flag in Hailey, Idaho, Saturday, June 22, 2013. The father and mother of the only known U.S. prisoner of war plan to speak on Saturday afternoon to a big crowd in their central Idaho hometown just days after his Taliban captors announced they want to exchange him for prisoners being held at Guantanamo Bay. (AP Photo/Jae C. Hong)
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Officials say the Taliban captured Bergdahl after he left his post. He remained a prisoner for five years before being released in an exchange for five Taliban commanders being held at the U.S. detention center in Guantanamo Bay, Cuba.

The 29-year-old was charged in March with desertion and misbehavior before the enemy. The military has not been holding him in confinement. If convicted of the misbehavior charge, he could face up to life in a military prison. He could also be dishonorably discharged, reduced in rank and made to forfeit all pay.

Some members of Bergdahl's former unit have called for serious punishment, alleging that some service members died looking for him.

While the Pentagon has said there is no evidence anyone died searching for Bergdahl, legal experts say the misbehavior charge allows authorities to allege his actions put soldiers who searched for him in harm's way.

Fidell has expressed concern that negative publicity that has been highly critical of Bergdahl could influence how the case is resolved. The GOP and some Democrats have long criticized the prisoner swap as politically motivated and a flagrant violation of U.S. policy against negotiating with terrorists.

Among those who have criticized Bergdahl have been GOP presidential candidate Donald Trump, who has repeatedly called Bergdahl a traitor.

"I'm not going to dignify Mr. Trump's comments any more than I have," Fidell said. "The amount of abuse to which (Bergdahl) has been subjected to in the blogosphere and elsewhere concerns me greatly."

Eric Carpenter, a law professor at Florida International University who also worked as a military attorney, said he expects Fidell will focus on arguing that the charges should not be referred to a court-martial, presenting evidence of how difficult it was for Bergdahl while in captivity.

He said Fidell might argue that Bergdahl should be given an "other than honorable discharge" and be allowed to go home.

Larry Youngner, a Washington, D.C.-based attorney who specializes in military law, said he believes there is a "very strong case" by the prosecution.

"We can't have soldiers abandoning their posts in a combat zone during a time of war," said Youngner. "This is a hugely serious offense."

The Article 32 hearing will result in a report that will be forwarded to Gen. Robert Abrams, the commanding general of U.S. Army Forces Command. Abrams will decide whether the case should be referred to a court-martial or is resolved in another manner.



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