American Cipher

by Matt Farwell

  A week after he was shot, Hatch lay in Walter Reed Medical Center in Bethesda, Maryland, confronting his new realities. His career as a SEAL was over. Remco was dead. Hatch would undergo eighteen operations on his leg in two years. Depressed and adrift, he began washing down painkillers with vodka and made a suicide plan. When his wife saw him with a gun in his mouth, she called the SEAL friend who had put him on the helicopter the night of the raid, and they checked him into the psychiatric ward on the fifth floor of the Naval Medical Center in Portsmouth, Virginia. As he began the long work of rebuilding his body and mind—what he called “the war after the war”—his SEAL buddies would call to check in anytime Bergdahl appeared in the news.

  On the 9/11 broadcast, Hatch said that Bergdahl, as an American, deserved his day in court, but that he should also understand what his fellow soldiers had sacrificed for him. As for the mission that ended his career and killed a beloved dog, Hatch blamed himself for taking the Taliban bullet. “It was a failure,” he said, “and I was the cause of it.”

  Three days before Christmas in 2015, Army judge Colonel Jeffery Nance arraigned Sergeant Bergdahl on Fort Bragg. Bergdahl had flown to North Carolina from Texas alongside soldiers assigned to travel with him for his own protection—the first run of what would become a routine 2,800-mile commute to an eventual twenty-five hearings. While millions of Americans clamored for violent and vengeful justice, Bergdahl was never recognized in public and traveled without incident.

  The Fort Bragg Courthouse sits atop a knoll flanked by a grove of Carolina pines and the base dental clinic. A cold December rain fell as Bergdahl arrived in full Army dress. Over his right shoulder, he wore the braided blue cord of the infantry. His chest included the combat infantry badge he had earned following the firefight at Omna, and his upper arms showed the sergeant stripes the Army had issued during his captivity. He was joined in court by his senior military counsel, Lieutenant Colonel Frank Rosenblatt, who had joined Fidell’s team in October 2014, while he was stationed in Hawaii as legal staff to a Navy SEAL Special Operations Command. (Fidell did not fly in for the brief arraignment formalities.)

  Raised in a military family, Rosenblatt had been commissioned as a second lieutenant in the Army after graduating from James Madison University in Virginia, where he studied religion and philosophy. He served as an infantryman for two years in South Korea before shifting to intelligence. In 2002, he deployed to the Balkans, where he briefed a young, fast-rising brigadier general named David Petraeus on the hunt for high value Bosnian Serbs who had been indicted for war crimes by the International Criminal Court at the Hague. Before 9/11, Rosenblatt hadn’t planned on making his career in the Army. But as they had for so many, the attacks altered his trajectory. In 2003, he deployed to Iraq with the 82nd Airborne. His unit had been tasked with jumping into a combat zone to seize Saddam International Airport, but ended up fighting off Iraqi attacks on the supply lines that kept the 3rd Infantry Division’s tanks rolling on what would be known as the Thunder Run route to Baghdad. Iraq was also where Rosenblatt first saw how quickly men in combat could spiral out of control and how much damage they could cause. After one company in his battalion killed several unarmed civilians in Fallujah, the backlash turned the city into one of the country’s bloodiest.

  After Iraq, Rosenblatt earned his law degree at the University of Virginia. In one of his first big cases, he prosecuted a group of infantrymen who had returned from Iraq in 2007 and gone on violent sprees in Colorado Springs. At Fort Carson, he worked under Major General Mark Graham, one of the first Army generals to sound the alarm about the military’s mental health crisis. As veteran suicides turned into an urgent epidemic, Rosenblatt’s attention turned to the less publicized trend of criminality spreading through the ranks. The cause was clear: Fighting two wars at once, the Army had lowered its standards too fast and issued too many waivers for bad candidates, including men who had criminal rap sheets, suffered from mental illness, or, like Bergdahl, had washed out of other service branches. In 2015, Rosenblatt, by now a lieutenant colonel, had been reassigned from his Special Operations Command in Hawaii to take over as the executive officer for the military’s Trial Defense Services at Fort Belvoir, Virginia. Defending Bergdahl was a job that few wanted, but one for which he was uniquely prepared.

  Over the 2015 Christmas break, the Pentagon readied its case against its most hated soldier in generations. In 1970, when the Army convicted Lieutenant William Calley as the only guilty party for the My Lai Massacre, he attracted fierce support among the rank and file who, even after he admitted to killing twenty-two Vietnamese civilians (including young children and a Buddhist monk), saw him as a scapegoat for orders that came from men above him. Even Bobby Garwood—the Marine private who disappeared under murky circumstances from his base near Da Nang before collaborating for years with his North Vietnamese captors—had been spared the collective enmity that greeted Bergdahl upon his return.

  Bergdahl’s prosecutors had public opinion on their side, but with it came expectations of swift justice. The collective outrage over the prisoner swap led to an equally widespread assumption that the Army had not brought its best case to the preliminary hearing the prior September. By this logic, Visger had made lenient recommendations because he had not been presented with Hatch’s case, or any of the abundant evidence that would convict Bergdahl beyond a reasonable doubt—and which Army lawyers were deliberately withholding from the defense ahead of trial. Left out of this hypothesis was the possibility that the case was never as simple as those narratives had made it seem.

  Army prosecutors were at the bottom of a narrow chain of command that began at the highest levels of government. It extended downward from McCain (the lawmaker with the most power over the military) to Abrams (the legacy-bearing scion to an illustrious Army dynasty) to the military attorneys on the Judge Advocate General (JAG) staff at FORSCOM, which, without ever having staged a general court-martial, was expected to build a crack squad that would prove what everyone who listens to the news already believed: Bergdahl was responsible for numerous deaths and casualties.

  After the arraignment, the prosecution team was overhauled. Kurz was removed as the lead JAG, and the government’s team more than tripled in size as ten more attorneys were brought on ahead of trial. When the defense responded in May by adding four more JAGs to its team, conservative outlets pounced. “Army Goes All-in on Bowe Bergdahl Defense,” The Washington Times declared, without mentioning that the Pentagon’s legal team was roughly twice as large. As the trial neared, FORSCOM would ultimately assign fifty JAGs to Bergdahl’s prosecution, an incredible reallocation of resources that, in a bizarre simulacra of the early days of the DUSTWUN itself, took active-duty attorneys away from assignments at command posts across the country and backlogged case files throughout the military court system. (By comparison, the case of Khalid Sheik Mohammed, the 9/11 mastermind held at Guantanamo, had merited only fourteen JAGs.)

  As the Pentagon team swelled, so, too, did the government’s trove of classified evidence. At the preliminary hearing, prosecutors had told Visger that they had obtained roughly three hundred thousand pages of classified documents, a number that struck Bergdahl’s defense attorneys as inexplicably high. By the following summer, the number had climbed into the millions. The message was clear: The Pentagon had the evidence it needed, but because the government controlled both the documents and the classification procedures, those materials would not be shared through the usual discovery process. Prosecutors also attempted to block the defense from making their own independent reviews of any classified material. To the defense, the classification juggernaut looked like a bureaucratic bypass around due process. Whether it was media-fueled demands for mob justice, or McCain’s interference, Bergdahl’s legal case was now being guided by a series of extrajudicial circumstances that had left Bergdahl in a legal purgatory, floating somewhere between the Army chain of command and the feedback loops of conservative
entertainment news.

  To Fidell, the case provided clear incentives for constitutionally guided reforms. The Pentagon was as aware of these issues as it was institutionally disinclined to address them. From the “Don’t ask, don’t tell” policy on gays in the military to endemic sexual harassment, recent history had shown that few things more easily rankled the Pentagon than congressional interference with internal military affairs. If Fidell thought, as several of his trial motions indicated, that Bergdahl’s case illustrated the need for reform, the Army couldn’t allow itself to be caught off guard. After Fidell and Rosenblatt flew to Prague in April 2015 to attend an international conference on military law, they discovered that the Army staff had sent a uniformed officer to attend the conference with them so that he could report back to the Pentagon on Fidell’s activities. The defense demanded an explanation, which was never provided, and the moment passed as yet another curiosity of uncertain import and a reminder that this was no simple desertion case. From 2010 to 2014, deliberations over how and even whether to bring Bergdahl home had revealed ideological rifts at the highest levels of government. Bitterness over the prisoner swap and Visger’s recommendations had only driven the political wedge deeper into the divide.

  In early 2016, the tussling over classified evidence came to a head. Media onlookers speculated that the defense was deliberately delaying things. In truth, Army JAGs’ insistence on shielding millions of documents behind classification laws had paralyzed the entire process. When Colonel Nance ruled that prosecutors needed to abide by the norms of discovery, the government appealed the decision to the Army Court of Criminal Appeals (ACCA), and the court-martial was put on hold for four months.

  By the time hearings resumed on May 17, 2016—with the ACCA upholding Nance’s ruling—the case faced a swarm of political distractions. As Obama attempted to pass his legacy to Hillary Clinton, one of the most polarizing and entrenched figures in the Washington establishment, Donald Trump’s campaign of media domination had turned the election into an all-consuming spectacle—and Bergdahl into a punching bag of populist ire. Fidell argued that the rhetoric surrounding the case—what General Dahl had called “the noise”—was so inescapable that it deprived Bergdahl of his constitutional right to due process and a fair trial.

  Trump had latched onto the scandal early. In mid-July 2014, as Bergdahl was being escorted to twice-daily intelligence debriefings, Trump called in to Fox News with a stark read on the situation:

  So here we trade five killers that want to destroy us, that are already back in service to try and knock us out, and we trade five killers for one traitor, and now we’re going to give the traitor $350,000 and we put him back to work like nothing happened, and they don’t investigate.

  Fox anchor Martha MacCallum didn’t challenge Trump’s hysteria. Instead, she speculated that since the Army’s promised court-martial hadn’t yet begun, the delay was an early sign of a White House cover-up. Trump’s analysis may have been warped, but he wasn’t the only American baffled and outraged by the entire affair. Bergdahl, as he saw it, was a crucible of every national ill:

  This is just one of many disasters. This is a catastrophe what’s going on in the country, just an absolute catastrophe. . . . Everything happening in this country is a calamity. There’s nothing good.

  One year later, when Trump descended a gilded escalator to the event where he declared his candidacy, he included Bergdahl in his opening rant of patriotic grievances. That summer, Trump made Bergdahl one of his favorite campaign rally gags, calling him a traitor at more than sixty-five separate campaign events while also cycling through a slideshow of punishment fantasies, including dropping him into ISIS territory “before we bomb the hell out of it,” or tossing him from an airplane without a parachute. Most frequently, though, Trump called for Bergdahl to be executed.

  In the old days when we were strong and wise, we shoot a guy like that. A traitor! He’s a traitor. He’s a traitor. . . . No, no, we shoot him! I don’t care! In the old days, when we were strong, and wise, traitors were treated very, very harshly.

  To the approving shouts and hollers of his supporters, Trump would raise his arms and pantomime pulling the trigger himself.

  * * *

  —

  SERIAL WAS MEANT to be everything Trump wasn’t. Where Trump exploited the voiceless soldier for his own gain, Serial would give Bergdahl the chance to speak for himself. With the same deft storytelling and investigative chops that had made the first season a hit, Boal and Koenig would bring fairness and humanity to a wartime tragedy that Trump had exploited for bloodlust and laughs.

  From their first moments, Boal’s taped phone calls were a revelation. Here was something that no one else could provide: an invitation to sit with Bergdahl, lean back, and listen with an open mind as he explained himself. The trauma was still raw as he laid bare the hells he had endured, including torture that he hadn’t been able to retell in formal questioning before a gallery of psychologists and government agents. He had been held in one tiny cell in total darkness for so long that he had lost the ability to understand not merely who he was, he told Boal, but what he was.

  “He’s a mystery,” Boal told Koenig in the first episode. “Nobody even really knows who he is. . . . Nobody knows why he did it.” For Boal, helping a traumatized soldier rebuild the pieces of his identity seemed like a return to his journalistic roots. It also made for a good story. Most compelling was the paradox at the heart of his alleged crimes; Bergdahl had abandoned his buddies in a war zone, he claimed, in order to save them.

  “How do you judge somebody like that?” Boal asked. “How do you judge him?”

  It was a compelling question—which a military judge had only just begun considering. To the story’s central tension, Koenig applied the same detective’s skepticism that had made her relationship with convicted murderer Adnan Syed so engrossing in the show’s first season. Just as she had questioned the fairness and rigor in Syed’s case, she didn’t rely on Dahl’s findings and instead set out to solve Bergdahl’s riddle anew. Koenig asked whether she could even trust Bergdahl, and specifically, “whether his description of what was happening around him is accurate or believable. Because of course this explanation could be a story he invented.”

  With each new episode, Boal and Koenig rummaged through the same dubious intelligence and Taliban propaganda that had sensationalized the scandal and aggravated Russell during Bergdahl’s reintegration. Months after Russell’s testimony in Texas had seemed to provide a definitive dismissal to the rumors, Boal and Koenig wondered aloud whether Bergdahl had converted to Islam, collaborated with the Taliban, or gone rabbit hunting with his guards. “I heard another [rumor] that he played soccer,” Boal recalled.

  To get to the bottom of these and other questions, Koenig called the Taliban, playing up the surreal comedy of the situation while providing no insight into who the source was or how she came by him. The Taliban spokesman provided her with a detailed itinerary about Bergdahl’s first days in captivity, which matched the early Taliban misdirection and baited ambush traps from July 2009—and directly contradicted Dahl’s report. Faced with having to rely on Dahl’s investigation or her Taliban source, Koenig went with the latter. And while that decision made for entertaining listening, it introduced irreconcilable contradictions that strayed further from the facts and closer to Congressman Peter King’s feared “cinematographic view of history.”

  Though Koenig cited Dahl’s report throughout the eleven episodes of Serial, and despite the pleas from Fidell and the rounds of First Amendment lawsuits from media companies demanding the Pentagon release it, Serial never disclosed that Boal had shared the secret documents with them months earlier. When a New York Times reporter asked whether they had indeed obtained them, Serial producers declined to comment.

  The concern for Bergdahl’s lawyers wasn’t whether Boal and Serial were breaking any laws; the legality o
f the Army’s protective order blocking media access to the report had always been suspect. If anything, Boal’s cavalier methods highlighted the absurdity of the Army’s rules. As one defense motion in February 2016 pointed out, the documents had been unsealed and openly referred to throughout the Article 32 preliminary hearing, theoretically providing an opportunity for a courtroom filibuster: “Had doing so not been so flagrantly wasteful of all parties’ time, these documents could literally have been read into the record for all to hear.”

  That winter, Koenig, Boal, and executive producer Julie Snyder embarked on an energetic promotional campaign. Koenig asked for patience from her critics. “Everyone wait for us to be done. That’s my dream world,” she told New York magazine. Snyder reassured The New York Times that they recognized the ethical minefield into which they had wandered, and that they would not put entertainment value ahead of the public interest. “No, we’re not holding back on something that the world needs to know,” Snyder said.

  But military law experts were skeptical. Beyond the widespread and genuine confusion about Serial’s methods, it was unclear what public interest was served by recycling sensational and scurrilous evidence in a case with the potential to determine policy reforms not only on domestic issues like mental health screening for the military, but on the future viability of the detainment camp at Guantanamo Bay—all before the trial had even begun.

  Bergdahl’s parents had been hopeful when they first heard that Koenig was going to address their son’s case. But when it emerged that she had teamed up not just with the entertainment industry, but with the CIA and Pentagon’s most reliable Hollywood client, they backed out. Boal flew to Idaho to make his plea in person, and Bob explained why he would not be a cooperative source: “I told him that anyone who promotes torture for profit doesn’t have the integrity to tell my son’s story.” As far as Bob was concerned, Serial was engaging in deception. “Every episode should have opened with a warning: ‘Warning: This series has been micromanaged by a public relations asset for CIA.’”