American Cipher

by Matt Farwell

  As the media debate raged, Mark Boal was growing impatient. It had been ten months since he had announced his film, but the story writ large was no closer to a conclusion that would enable him to roll cameras. Meanwhile in New York, the producers of the podcast Serial were searching for their follow-up hit. In 2014, the first season of this investigative spinoff of NPR’s This American Life had become a sensation and the first ever podcast to reach five million downloads.

  Operating with a small, scrappy staff and a line of advertisers knocking at their digital doorstep, Serial was under pressure. Producers had promised season two would air in 2015, and millions of listeners were wondering what was taking so long. Some had donated money to support the show’s journalistic mission. But as spring turned to summer, and early advertisers Audible, MailChimp, and Squarespace were joined by larger funders, second album syndrome had set in. When Boal and Serial made contact that summer, his timing and offer were too good to refuse: exclusive tapes of America’s most notorious soldier in an intimate confessional. In return, Serial gave Boal editorial control. The alliance would help Boal introduce the subject of his upcoming film to a wider and younger audience, while etching its plotlines into the grooves of public consciousness. The plan in motion, Boal and Serial host Sarah Koenig set out to tell Bergdahl’s story and report on his legal case in real time.

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  GENE FIDELL HAD TAKEN on Bergdahl’s case pro bono. Fidell was a native New Yorker with a law degree from Harvard who had been introduced to military law during Vietnam. He had served four years in the Coast Guard during the war, and forty years later, in the courtroom, he still wore a miniature Coast Guard Achievement Medal pinned onto his jacket lapel. Fidell was a busy man. While working as a partner in a Washington, D.C., firm specializing in federal cases, he was based in Connecticut, where he had been a lecturer at Yale Law School since the early 1990s. He did all this while also publishing an online journal devoted to the cause that had defined his career: Global Military Justice Reform.

  Fidell was at once a respected scholar and something of an iconoclast in the small community of military justice experts. Following his introduction to its obscure workings, he commited himself to improving and modernizing what he saw as an archaic system. In 2004, he had defended Army Captain James Yee, the West Point graduate who had worked as a Muslim chaplain at Guantanamo. After a list of detainees was found in Yee’s luggage, he was arrested at Naval Air Station Jacksonville and held in solitary confinement for seventy-six days, most of that time in shackles and chains, a punishment that Fidell noted was worse than those of the detainees themselves. After months of obfuscation and claims that Yee had been engaged in espionage, his case was dismissed at an Article 32 preliminary hearing, due to a lack of evidence.

  In the spring of 2015, Fidell saw the Pentagon handle Bergdahl’s case with familiar overkill. The protective order that had sealed Dahl’s findings and Bergdahl’s sworn statement was an early sign that the Army was more interested in control than transparency. Bergdahl had not been legally required to sit for questioning with Dahl; he had done so because he wanted to explain himself. What the Army had ordered, Dahl had delivered: an official, confirmed record of the facts. The public and the media wanted to know these things. And yet, even as Fox News regurgitated Taliban rumors, the Army refused to release its own verified findings. So Fidell began pushing back, lobbying news outlets to submit Freedom of Information Act (FOIA) requests and to demand the public’s right for a transparent legal process.

  That September, the Army held an Article 32 preliminary hearing to decide whether and how the case should proceed to trial. A low-ceilinged, fluorescent-lit basement conference room on Fort Sam Houston was the venue for Sergeant Bergdahl’s first public appearance. He sat with his spine perfectly straight, his jaw muscles constantly clenching and unclenching, his face gripped by what looked like constant pain.

  During opening statements, Fidell informed Lieutenant Colonel Mark Visger, the case hearing officer, that he had just one sentence to offer: “The government should make Sgt. Bergdahl’s statement available to the public and not just to you.”

  In the two days of hearings that followed, Dahl’s report and Bergdahl’s statement were accepted as evidence and frequently referred to by JAG prosecutors, who flipped through its pages just feet away from reporters whose own companies were at that moment preparing a formal legal petition to compel its release. That month, Bergdahl’s defense team filed its first formal complaint on the issue with the Army Court of Criminal Appeals. Denied, they appealed the matter to the Court of Appeals for the U.S. Armed Forces, where they were denied again. At a press conference in San Antonio, Fidell pleaded, “If anyone in the halls of government is listening to this, ask yourself, ‘Why is the Army withholding its own investigation and Sgt. Bergdahl’s testimony from the public eye?’”

  In early October, a dozen national media companies, led by the local San Antonio Express-News and its parent company, Hearst Newspapers, filed their own petition with the Army Court of Criminal Appeals. Joined by the Associated Press, Bloomberg, BuzzFeed, Dow Jones (owner of The Wall Street Journal), McClatchy, The New York Times, Reuters, and The Washington Post, the companies cited the public’s First Amendment right to know how this exercise in military justice—“a public act, conducted on the public’s behalf, and therefore necessarily open to public scrutiny”—was being handled. There is a reason that civilian courts do not bar access to unsealed documents in such an authoritarian manner, they argued: “Without access to records, the public is left in the dark on the full nature of proceedings.” In December, the Army turned the media companies down without explanation. Meanwhile, Mark Boal’s production company, Page 1, had already somehow obtained the coveted report and shared it with his partners at Serial.

  Following the hearing in San Antonio, all eyes were on Lieutenant Colonel Visger, to whom it fell to adjudicate what he had heard over two days of emotionally charged testimony from both sides of the case. The government had called officers Billings and Silvino to describe the chaos of June 30, 2009, and the dangers and miseries of the searches that followed. As her final witness, lead prosecutor Major Margaret Kurz called Lieutenant Colonel Baker. She asked the battalion commander how severely the searches had handicapped his mission, but was caught off guard when Baker replied that the DUSTWUN, while difficult, had also produced some of the greatest disruptions of Taliban networks that he had seen at any point during the war.

  On the second day of hearings, every uniformed soldier and officer in the basement hearing room stood at attention as Fidell called Major General Kenneth Dahl to the witness stand to convey in his own words what the Army had refused to release to the public. For his final question, Fidell asked if Dahl had an opinion regarding a possible jail sentence.

  “I do not believe that there is a jail sentence at the end of this process,” Dahl said. “I do not think it would be appropriate.”

  Terry Russell was the final defense witness, and his brutal testimony froze the room.

  “I don’t know about you, sir,” Russell said, turning to address Visger directly, “but if I have diarrhea more than a couple or three days, I’m thinking there’s something seriously wrong with me, and I want to get some treatment. And you and I have the luxury of using toilet paper. . . . When you are cleaning yourself of diarrhea and your clothing is soiled, your bedding is soiled, you are cleaning yourself with your hands and the only way to clean your hands is to rub your hands in dirt to get the fecal matter off, and the only water that you have available to clean your mud-covered hands is your own urine—that’s what Sgt. Bergdahl had to do.”

  Russell dispelled the popular myths. Bergdahl hadn’t helped the Taliban with military strategy, he said, because “the Haqqanis hold the United States soldier in absolute contempt” and they didn’t care about or respect what he had to say. Russell recounted the many ways that Bergdahl had
tried to escape until he finally succeeded and was captured again. Russell called him “an Army of one” who took command of his own hopeless battle for four years and eleven months.

  “Bowe Bergdahl has been accused of many things, but what you cannot accuse him of is his lack of resistance, his willingness to serve his country with honor in captivity, to do what he had to do to maintain his dignity and return.” In closing, Russell grew emotional. “I’ve asked this question of many POWs. ‘Did you do your best?’ And all you can do is look at yourself in the mirror and say to yourself, ‘I did the best job I could do.’” Russell gathered himself and concluded: “I think Sgt. Bergdahl did that. He did the best job that he could do, and I respect him for it.”

  To the media assembled at Fort Sam that day, Russell and Dahl’s testimonies marked what seemed like a turning point. Now that the facts of Bergdahl’s suffering were known, surely the national mood toward his case would swing in his favor. But the feeling was short-lived. On October 5, in a strenuously balanced report, Visger delivered his recommendations: Given the lack of evidence that anyone was killed or wounded searching for Bergdahl, the case should proceed to a special court-martial (also known as a “straight special”), a lesser trial for lesser crimes that cannot result in jail time.

  This time, the call-and-response cycle between events and the entertainment news business grew more focused and more punitive. Fox News anchors were outraged, or at least they acted that way. That month, audiences of millions were told that Bergdahl had “defected” and given aid and comfort to the enemy, that seven men from his own platoon had died searching for him, that he had told his fellow soldiers that he wanted to “join the Taliban,” that he had departed his post “during combat,” and that the U.S. government had “intercepted phone calls” from Bergdahl to his platoon telling them that he was gone and not coming back.

  There was no evidence for any of this, but it was the perception of reality that mattered most.

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  ON OCTOBER 12, 2015, Senator John McCain was at a campaign stop in Pelham, New Hampshire, rallying support for his comrade, Senator Lindsey Graham. McCain had been a man of two minds on Bergdahl and the prisoner exchange. In August 2009, he had seemed sympathetic to Bergdahl’s family’s plight. Over the ensuing years, he had vacillated between supporting and opposing a Taliban prisoner swap, and, in 2014, he lobbied Obama to bring the country’s last POW home sooner. But when a Boston Herald reporter in New Hampshire asked McCain for his reactions to Visger’s recommendations, he was blunt:

  “If it comes out that he has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee.”

  As chairman of said committee, McCain controlled Pentagon budgets and officer assignments and promotions, and he was the gateway through which every officer’s career must pass, including those now deciding Bergdahl’s fate. Fidell spoke out immediately, accusing McCain of “unlawful congressional influence,” a play on the common terminology of unlawful command influence (UCI), codified in Article 37 of the UCMJ. Several military legal experts concurred: McCain was meddling with due process and had all but guaranteed that the Army would take a harder line than if he had said nothing.

  Sentiments toward Bergdahl were no better in the House Armed Services Committee (HASC), where Texas Republican Mac Thornberry, who had taken the chairmanship from McKeon the prior January, was overseeing an independent investigation into the Obama administration’s quasi-legal prisoner swap. What was done was done. There would be no charges against Obama or Hagel or Kerry or anyone else, but the committee could at least make its case that their NDAA amendment had been broken. While House Republicans assembled the evidence for their report, Mark Boal and Sarah Koenig readied for podcast launch. As Koenig interviewed more and more Blackfoot Company veterans, word of what was coming had spread fast, and by the time the first episode was set to drop onto millions of cell phones worldwide, Serial’s audience was primed with a weeklong news crescendo orchestrated by a savvy House committee staffer.

  While repeating the official line that the report would be released on Thursday, December 10, the Hill staffer shared it with a select few national security writers in a series of incremental leaks. On Monday, Tuesday, and Wednesday, stories about Obama’s alleged lawlessness trickled into the news, and when Serial’s first episode dropped that Thursday morning, the streams converged into a flood of headlines about Serial’s scoop. Bergdahl had admitted what he had done. He even had an explanation: He had wanted to prove that he was a real-life Jason Bourne. For a soldier accused of serious crimes, this was not a sound legal strategy. Friday’s New York Post called it, “The Bourne Stupidity.”

  Before Serial went to air, Bergdahl’s attorneys had been awaiting an imminent decision on the future of the case from FORSCOM commander, four-star General Robert Abrams, who was not bound to Dahl or Visger’s recommendations. On Thursday and Friday, as Bergdahl’s confessions surged through the media, General Abrams and his legal team were in their final days of deliberations, and they were listening to the news. Abrams knew the case well; during Bergdahl’s captivity he had been Hagel’s top military aide. He was also the scion of an Army dynasty—his father and both of his older brothers had been generals.

  There were only a select few positions in the uniformed military where Abrams could still climb, all of which ran through McCain’s committee. If McCain’s comment about the case had shown Abrams the path, then hearing the accused soldier admit his crime to a Hollywood screenwriter on national airwaves was something approaching a dare. On Monday morning, December 14, Abrams announced his decision: Sergeant Bergdahl was going to a general court-martial. If he was found guilty of both charges, he could go back inside a cage for the rest of his life.

  TWENTY-TWO

  THE NOISE

  In July 2015, after the Army had determined Bergdahl’s charges but before General Abrams had called for a general court-martial, Bergdahl’s commanders in Texas approved his request to take a personal leave to visit Kim Dellacorva in Northern California. He flew in plainclothes on a commercial airliner. Shortly after arriving at what had been planned as an opportunity to unwind in a peaceful remote setting with one of the only people with whom he had ever felt truly at ease, a Mendocino County Sheriff’s Office task force arrived at Dellacorva’s home with warrants to search the property.

  Growing limited amounts of marijuana is legal in California, and while Mendocino had long been known as a place where police and pot growers coexisted with a tacit understanding, the task force arrived that day on what it said was an anonymous tip about a serious criminal operation. (It was later revealed that the series of events began with a call from Bergdahl’s Army commanders in Texas, intending to inform local law enforcement about his travels amid innumerable death threats. The exact motives for the sheriff’s department’s next decision—to raid Dellacorva’s home while Bergdahl was there—remain unclear.) Bergdahl presented his military identification, and explained who he was and what he was doing in Northern California. They did not arrest him, and, as far as Bergdahl was concerned, the incident might have ended there. But when the police report appeared in a local Mendocino newspaper, conservative media outlets ran the story with gleeful scorn.

  The Washington Times reported that Bergdahl had been “busted,” even as the county sheriff explained that the infamous soldier had not, in fact, been arrested. Rather, said Sheriff Tom Allman, Bergdahl had gone “above politeness” while trying to help his deputies handle his delicate legal situation; one sheriff’s deputy called him “a perfect gentleman.” After his commanders at Fort Sam were alerted, news of Bergdahl’s brush with the law reached the Pentagon, where officials requested that the local police drive him south to Santa Rosa to meet an Army officer who would escort him to his appropriate duty station.

  Appearing on Fox & Friends, retired Special Forces officer (and future 2018 congressional
candidate) Lieutenant Colonel Michael Waltz added new, highly questionable embellishments to his original story: “[Bergdahl] is responsible for the death of multiple soldiers that I personally witnessed,” Waltz claimed, incredibly. “I’m glad the Army is going to hold him accountable, but this is just another selfish act by a soldier who doesn’t have regard for the Army and his country.”

  Two weeks later, a wounded Navy SEAL veteran stepped forward with a grave new allegation. Retired Senior Chief Petty Officer James “Jimmy” Hatch told his DUSTWUN story to his local newspaper in Norfolk, Virginia, which led in turn to a call from CNN. On September 11, journalist Anderson Cooper sat down with Hatch in an exclusive prime-time interview, part of a special episode commemorating 9/11 and the ever-widening ripples of its impact. Hatch recalled the night of July 9, 2009, in harrowing detail: the SEALs and their service dog, Remco, jumping off a helicopter into a hot landing zone and taking heavy fire from Taliban with AK-47s, a belt-fed machine gun, and RPGs. “It was chaos,” Hatch said. But as he understood it, they were there to rescue a U.S. soldier, and no matter what the kid had done or how little they thought of him, they accepted their mission without protest.

  “He was an American, and he had a mom, and I didn’t want his mom to see him get his head chopped off on YouTube,” he told Cooper.

  When Hatch saw two Taliban maneuvering a few hundred yards away, he sent Remco out front to intercept them. The Taliban opened fire: two bullets hit Remco, dropping him immediately, and one 7.62-caliber bullet caught Hatch just above the knee, shattering his femur and sending shards of bone out through an exit wound. The force of the impact flipped him, and although he tried to tell himself not to make any noise that could draw the enemy’s attention, he hit the ground screaming in pain. As the firefight raged around him, the SEALs gave Hatch a morphine lollipop and loaded him and Remco’s limp body onto a medevac helicopter.