Bergdahl faces rare military charge

Misbehavior before the enemy for leaving post

RALEIGH, N.C. — Military prosecutors have reached into a section of military law seldom used since World War II in the politically charged case against Army Sgt. Bowe Bergdahl, the soldier held prisoner for years by the Taliban after leaving his post in Afghanistan.

Observers wondered for months if Bergdahl would be charged with desertion after the deal brokered by the U.S. to bring him home. He was — but he was also charged with misbehavior before the enemy, a much rarer offense that carries a stiffer potential penalty in this case.

“I’ve never seen it charged,” Walter Huffman, a retired major general who served as the Army’s top lawyer, said of the misbehavior charge. “It’s not something you find in common everyday practice in the military.”

Bergdahl could face a life sentence if convicted of the charge, which accuses him of endangering fellow soldiers when he “left without authority; and wrongfully caused search and recovery operations.”

Huffman and others say the misbehavior charge allows authorities to allege that Bergdahl not only left his unit with one less soldier, but that his deliberate action put soldiers who searched for him in harm’s way. The Pentagon has said there is no evidence anyone died searching for Bergdahl.

The misbehavior charge is included in Article 99 of the military justice code, which is best known for its use to prosecute cases of cowardice. However, Article 99 encompasses nine different offenses including several not necessarily motivated by cowardice, such as causing a false alarm or endangering one’s unit — the charge Bergdahl faces.

Bergdahl’s attorney, Eugene Fidell, says his client is being charged twice for the same action. Legal scholars say that’s a valid issue for Fidell to bring up in court.