Bowe Bergdahl will face a military court martial -- here's how that's radically different from a civilian court

Bowe Bergdahlwikimedia commonsBowe Bergdahl

Bowe Bergdahl, the Army sergeant who returned to the US after being held captive for five years by the Taliban, will now face a general court-martial on charges of desertion.

Bergdahl will be tried by a panel of at least five senior military officers, called members, and a military judge. Only a two-thirds majority among the members is needed to convict Bergdahl, according to the Constitutional Rights Foundation.

In a civilian court, juries consist of six to 12 people and generally must have a unanimous vote for either an acquittal or a conviction.

Bergdahl left his base in remote Paktika Province, Afghanistan in the early morning hours of June 30, 2009 and was subsequently captured by Taliban-aligned groups. He was returned to the US in a 2014 prisoner swap for five Taliban militants.

The general court-martial that Bergdahl faces is the military court reserved for the most serious offenses — those that would be classified as felonies under civilian court.

The announcement marks a full turn-around from an Army officer’s recommendation in October that Bergdahl should face a lower-level court martial and be spared the possibility of prison.

Bergdahl is facing two distinct charges before the general court-martial. If convicted on the first charge, desertion, he’ll be sentenced to a maximum of five years in military prison. The second charge, misbehavior before the enemy, is far more serious: If convicted, Bergdahl, 29, could face life in prison, according to The New York Times.

How else do military courts differ from civilian courts?

Courts-martial are specifically designed to try military offenses based on military law — the Uniform Code of Military Justice.

Members of the US military, prisoners of war, and members of certain government organisations working with the military are subject to courts-martial, according to the Reporters Committee for Freedom of the Press.

There are three classes of courts-martial. Summary courts-martial apply to minor offenses, while more serious offenses are tried in special courts-martial, according to the Reporters Committee.

General courts-martial, where Bergdahl will now be tried, is the highest-level military court, according to the Reporters Committee.

Bergdahl prisoner swap videoScreenshotBowe Bergdahl, seen with his Taliban captors in the prisoner swap video

Here’s how a general court martial works: Before the court is convened, there’s a pre-trial hearing, called an Article 32, where the initial charges are examined. This is similar to a grand jury, where a jury determines whether there’s sufficient evidence to indict someone.

In the Article 32 hearing, Bergdahl and his counsel will be allowed to offer their own arguments and cross-examine witnesses. In a civilian grand jury, Bergdahl would not have this privilege.

Though he has the option of using free military counsel, Bergdahl has opted for civilian counsel. He’ll be represented by Eugene Fidell, a Yale professor who specialises in military law.

If the case moves to court after the Article 32 hearing, Bergdahl will be tried by a panel of at least five military officers, called members, and a military judge.

If it’s a capital case, there needs to be a unanimous verdict for the accused to be sentenced to death. If the case involves 10 or more years of imprisonment, like Bergdahl’s, there needs to be a three-fourths majority among the presiding military officers for a guilty verdict, according to the Reporters Committee.

When asked about the move to try Bergdahl in front of a general-courts martial, Eugene Fidell told Business Insider: “I have no comment on what would be an appropriate punishment. I can, however, tell you that in my closing statement at the public preliminary hearing in September I said that all the government had shown probable cause for was a 1-day AWOL. FYI, the punishment for a 1-day AWOL is 30 days’ confinement.”

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