Bowe Bergdahl, who has been charged of desertion for walking off his post in Afghanistan in 2009, appears unlikely to receive the death penalty for his actions if convicted.
While the Uniform Code of Military Justice allows for capital punishment to be used for desertion or misbehavior before the enemy, this is only applicable during a time of declared war.
Noel Tipon of Bilecki & Tipon, LLLC, a court-martial defense firm, opined that while technically the death penalty may be an option for the Convening Authority, such a punishment would be an “unlikely event” since no American deaths were a direct result.
No U.S. service member has been executed for military crime since Edward Slovik was killed by firing squad in 1945. The case may turn on the fact that no declaration of war was signed for U.S. military operations in Iraq and Afghanistan; Congress instead issued a Use of Military Force authorization which was signed by President Bush in 2001 less than two weeks after 9/11.
Some of those serving with Bergdahl allege that other Soldiers died while searching for Bergdahl and some of his platoon mates hold Bergdahl responsible.
While these allegations may prove influential in deciding the case, Tipon notes that “that’s such a tough call to make because typically a death-penalty-eligible case is for murder. It isn’t second- or third-order effects, as they say in the military, of what the misconduct was.”
Navy attorney Lt. Cmdr. Rich Federico has been pushing for the abolition of the death penalty in cases where no deaths directly resulted. To Federico, military crimes like desertion are not in line with “the modern civilian view that the death penalty must be limited to a narrow class of defendants who commit…the most serious crimes and whose extreme culpability makes them the most deserving of execution.”
Bilecki & Tipon, LLLC offers aggressive defense for U.S. service men and women in Hawaii, Japan, Korea, and other parts of the globe. They offer elite defense for those charged with military and civilian crimes— call us to learn more!