Noah Feldman, Columnist

Why Bergdahl Faces a Worse Charge Than Desertion

"Misbehavior before the enemy" conveys opprobrium more suited to colonial times.

December 15, 2015 at 9:11 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

We don't yet know all his motives.
Source: U.S. Army via Getty Images

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U.S. Army Sergeant Bowe Bergdahl deserted his post in Afghanistan in 2009 -- there isn’t much doubt about that. But the charge of desertion isn't the reason he faces life imprisonment in his court-martial, announced Monday by the commanding officer at Fort Bragg, in North Carolina. Under the Uniform Code of Military Justice, the maximum punishment for desertion is five years. The potential life sentence comes from a now-obscure charge with origins in the articles of war enacted by the Continental Congress on Sept. 20, 1776: the charge of misbehavior before the enemy.

What, exactly, is this crime of misbehavior -- and should it be applied to Bergdahl? The story begins before the creation of the United States, with the early history of formal military regulations issued by the British crown for its soldiers. Known as “articles of war,” the British regulations of 1762 stated that “whatsoever Officer or Soldier shall misbehave himself before the Enemy, or shamefully abandon any Post committed to his Charge, or shall speak Words inducing others to do the like, shall suffer Death.”1450211374307