Eugene R. Fidell said outside of a possible inquiry into the circumstances around Bergdahl’s disappearance- he went missing while in Afghanistan’s Paktika province in June 2009- and subsequent court martial for desertion, there are not many other legal avenues that may be pursued with respect to the Bergdahl’s release by the Taliban. Fidell is a military justice law professor at Yale Law School and co-founder of the National Institute of Military Justice as well as counsel at Feldesman Tucker Leifer Fidell LLP in Washington, D.C.
He couldn’t say for certain he expects a court martial, especially considering the physical and emotional strain Bergdahl already encountered. “I’m having mood swings on this,” Fidell said, although he did add he expects there will be some form of inquiry.
However, with respect to private litigation, he said there is not, for example, any legal recourse for the families of any soldiers that died searching for him, even if it was to be determined that he deserted his post. He also said he does not believe the President acted improperly by executing the swap without notifying Congress, which some have cited as a bone of contention.
The oft-cited 30 day notice in the National Defense Authorization Act for Fiscal Year 2014 was created to be an impediment for the President to unilaterally bring suspected terrorists into the United States, or let them leave the Cuban detention facility, he said, and the spirit of the legislation is not aimed at POW exchanges of this nature.
Futher, any discussion of Bergdahl being prosecuted as a traitor is nothing more than a “red herring.” In other words, a charge of “treason” is all but out of the question, Fidell said. If there is no challenge regarding the President’s actions, and if military prosecutors feel it would be inappropriate to take action against Bergdahl considering the time he spent in captivity, the entire ordeal may yield little more than partisan jabs and headlines. However, some in Congress have been vocal about what they say was an underhanded move by President Barack Obama and said they think he may have even created further national security risks by making the swap.
"America has maintained a prohibition on negotiating with terrorists for good reason. Trading five senior Taliban leaders from detention in Guantanamo Bay for Berghdal’s release may have consequences for the rest of our forces and all Americans," Rep. Howard P. “Buck” McKeon (R-CA), Chairman of the House Armed Services Committee, and Sen. James Inhofe (R-OK), Ranking Member of the Senate Armed Services Committee, said in a released a joint statement. "Our terrorist adversaries now have a strong incentive to capture Americans. That incentive will put our forces in Afghanistan and around the world at even greater risk.”
“In executing this transfer, the President also clearly violated laws which require him to notify Congress 30 days before any transfer of terrorists from Guantanamo Bay and to explain how the threat posed by such terrorists has been substantially mitigated," the statement continues. "Our joy at Sergeant Berghdal’s release is tempered by the fact that President Obama chose to ignore the law, not to mention sound policy, to achieve it."
Fidell added there is at least one other prisoner he is aware of that could be the subject of a detainee exchange.
Dan Sabbatino is an award winning journalist whose accolades include a New York Press Association award for a series of articles he wrote dealing with a small upstate town’s battle over the implications of letting a “big-box” retailer locate within its borders. He has worked as a reporter and editor since 2007 primarily covering state and local politics for a number off publications.