The Archaic Charge Against Bowe Bergdahl

On March 25, U.S. Army Sergeant Bowe Bergdahl was slammed with a pair of charges relating to his capture and imprisonment by the Taliban: desertion, as well as misbehavior before the enemy, the latter of which is far more dire. And, as the Associated Press detailed Monday, misbehavior before the enemy is a pretty archaic charge, predominantly having been used during and immediately after World War II, and only seen sparingly over the last few decades. So, what does "misbehavior before the enemy" in Bergdahl's case actually mean, and what could the consequences be for Bergdahl?

There are big differences between misbehavior and simple desertion, which is a far more common charge. The qualifications for a misbehavior charge are laid out in the Uniform Code of Military Justice, although there are different possibilities — there are nine different clauses defining "misbehavior before the enemy." It'll be up to military prosecutors to lay out which of these descriptions fits Bergdahl's disappearance, capture and confinement.

According to UCMJ Article 99 on misbehavior before the enemy, the phrase applies to members of the armed forces who're guilty of the following:

(1) runs away;

(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;

(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;

(4) casts away his arms or ammunition;

(5) is guilty of cowardly conduct;

(6) quits his place of duty to plunder or pillage;

(7) causes false alarms in any command, unit, or place under control of the armed forces;

(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or

(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle.

While it's impossible to know just yet how prosecutors will approach the charge, the publicly known facts of Bergdahl's case would make numbers two and three seem like distinct possibilities. Bergdahl is alleged to have deliberately left his base in eastern Afghanistan in the middle of the night, after which (at some point) he fell into enemy hands.

Furthermore, former members of Bergdahl's unit have publicly alleged that lives were lost as a result. If this were true, it could reasonably fall under the third provision listed above — although, as the AP notes, the Pentagon has said publicly there's no evidence of any deaths resulting from his disappearance.

In any event, the difference between the lesser desertion charge and the misbehavior charge is wide. It's the latter that could land Bergdahl a life imprisonment. In fact, although it's widely expected that a life sentence will be the harshest possible punishment, a court martial conviction for misbehavior before the enemy actually can carry a maximum sentence of death. According to the end of UCMJ Article 99, a person convicted of misbehavior can be "punished by death or such other punishment as a court-martial may direct."