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Bergdahl's attorney also fought for Army captain in espionage case

Jul. 16, 2014 - 06:00AM   |  
Civilian attorney Eugene Fidell, right, speaks to the media with Capt. James Yee in 2004. Yee, an accused spy who was exonerated, was a big legal victory for Fidell. (Adele Starr/The Associated Press)
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Sgt. Bowe Bergdahl's lawyer is a Yale scholar and military justice expert. (Uncredited / AP)

Sgt. Bowe Bergdahl has retained a high-profile attorney — the same lawyer who defended Capt. James Yee, a Muslim Army chaplain cleared in an espionage probe a decade ago.

Bergdahl’s lawyer is Eugene Fidell, a Yale Law School scholar, prominent military legal expert and a co-founder and former president of the National Institute of Military Justice.

The Army is investigating the circumstances that led to Bergdahl’s disappearance and capture, probing allegations that Bergdahl walked off his remote post in Afghanistan without authorization before militants seized him. After five years in captivity, Bergdahl was freed May 31 as part of a controversial exchange with the Taliban for five militants who were in detention at Guantanamo Bay, Cuba.

In an interview with Army Times, Fidell said Wednesday he was “gratified” at having been approached to represent Bergdahl and that he has since met with Bergdahl last week at Fort Sam Houston, Texas. Bergdahl has concluded an Army-led reintegration process and this week was assigned a desk job at the headquarters for U.S. Army North.

“This is a soldier who has been through an indescribable ordeal, and we can never lose sight of that,” Fidell said.

Fidell said Bergdahl was, “grateful to the president for having saved his life.” Otherwise, Fidell did not offer his own conclusions about Bergdahl’s condition or state of mind. Nor would Fidell comment on whether he or Bergdahl were in communication with Bergdahl’s family.

Maj. Gen. Kenneth Dahl, who is leading the investigation into the circumstances of Bergdahl’s disappearance, has yet to question Bergdahl.

Fidell, who is lead counsel assisted by an attorney with the Army Trial Defense Service, said he plans to be with Bergdahl when he is interviewed.

Republican lawmakers have criticized the trade and suggested that Bergdahl intentionally left his post to meet up with the Taliban, and some of his fellow soldiers have said their lives were put at risk in the search for him. However, Fidell cautioned against generalizing about how Bergdahl is viewed by his peers — and he discussed the range of opinions in the public at large.

“I am concerned about vilification, I think some of it has already happened,” Fidell said of Bergdahl’s case. “There are certainly people who wish him ill. We all know that.”

On the other hand, Fidell said he has received “A number of quite touching emails from total strangers since my involvement became known, and I’ve shared those with my client.”

Other than the intense public interest, Fidell said he did not see any similarities between Bergdahl’s case and Yee’s.

Yee, a West Point graduate, was accused in 2003 of being part of a spy ring at the U.S. prison for suspected terrorists in Guantanamo Bay.

After spending 76 days in solitary confinement, Yee eventually was exonerated, resigned from the Army and received an honorable discharge.

In an interview with Military Times weeks before he became Bergdahl’s attorney, Fidell said there is an “unwritten policy” to avoid court-martialing service members who have spent time as POWs.

“I don’t think they’ll do that in this case,” Fidell said in the June 2 interview. “Unless something comes to light that suggests that he was a turncoat or joined the other side or assisted the other side in some way. … There is no public indication that any of those things are true in his case.”

Fidell has also taught at Harvard Law School and the American University Washington College of Law. From 1969 to 1972, he served as a judge advocate in the Coast Guard.

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