Lawyers for Army Sgt. Bowe Bergdahl are seeking to limit the severity of punishments he could face through new arguments attacking the structure of accusations that he endangered comrades by walking off his post.
One motion slated for argument at a pretrial hearing Wednesday contends the most serious charge should be dismissed because Bergdahl's actions didn't rise to the level of criminality required to meet the definition of the rare offense. If convicted of misbehavior before the enemy, Bergdahl, who's from Idaho, could be sentenced to life in prison.
Another motion argues that his capture by the Taliban prevented him from returning to his comrades during the period when he's accused of the separate charge of desertion.
A legal scholar not involved in the case, Eric Carpenter, said defense attorneys could have a tough time convincing the judge of those arguments, but a favorable ruling on either could help steer the case away from harsher punishments.
Carpenter said Bergdahl can be convicted of desertion no matter how quickly he was captured by the enemy.
"Here is the basic rule: If you are in the wrong when you leave — because you don't have permission, for example — and then something happens which prevents you from turning yourself in, that is your problem," said Carpenter, a former Army lawyer who teaches law at Florida International University.
But Bergdahl's captivity could affect the length of the sentence if he's convicted, Carpenter said. The question of when he was captured would also matter if Bergdahl is convicted of, or pleads guilty to, the lesser offense of unauthorized absence, or AWOL.
The soldier left his remote post in Afghanistan in 2009 and was subsequently held by the Taliban and its allies for about five years. Bergdahl has said he walked off his post to cause alarm and draw attention to what he saw as problems with his unit.
Prosecutors argue that Bergdahl's decision to walk into territory rife with enemies led to his capture, so his period of desertion extends through his captivity. They also argue that it's premature for the judge to weigh in now on an issue that will be addressed at trial.
But Bergdahl's attorneys say it wouldn't be fair for their client to decide how to plea without a ruling on the duration of his desertion.
Defense lawyers are also seeking to dismiss the separate charge of misbehavior before the enemy, arguing that his alleged misconduct doesn't rise to the level of the offense that could land him in prison for life. They say prosecutors chose the wrong building blocks for the offense because the actions cited in the charge wouldn't be independently criminal, an argument that prosecutors dispute.
Prosecutors say, for example, that Bergdahl's leaving the post alone was by itself an offense under the military's criminal code.
The arguments signal a move away from high-profile but largely unsuccessful defense efforts to derail the case based on criticism of Bergdahl by President Donald Trump when he was a candidate. The trial judge has declined to dismiss the case over Trump's comments, and an appeal of that ruling was denied in May.
Bergdahl is scheduled for trial in October. He has been assigned to desk duty at a Texas Army base while awaiting trial.
The military probe of Bergdahl began soon after he was freed from captivity on May 31, 2014 in exchange for five Taliban prisoners. Former President Barack Obama was criticized by Republicans who claimed he jeopardized the nation's security with the trade.
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