In their prosecution of U.S. Army Sergeant Bowe Bergdahl, a soldier held prisoner by the Taliban for several years, military lawyers have decided to resurrect a charge that has hardly been used since World War II: Misbehavior before the enemy.

To recap, Bergdahl was arrested in March 2015 for allegedly leaving his military base in Afghanistan in the dead of night and fleeing into the desert. At some point after the abandonment of his post in 2009, Bergdahl was captured by the Taliban and held captive. He was released in May 2014 in a prisoner exchange for five members of the Taliban imprisoned in Guantanamo bay

Bergdahl claims that he had concerns about the leadership at his current base and left in order to walk to another U.S. outpost. Having told no one of his decision, Bergdahl inadvertently left a base with one less soldier and put his unit in harm’s way as they searched for him. His capture also caused the release of five Taliban leaders in U.S. custody. Whether or not Bergdahl was truly deserting, his decision to leave his unit caused a ripple of consequences that harmed U.S. military members and defense strategy.

If he left his base in the middle of the night, why is Bergdahl being charged with “misbehavior before the enemy” instead of simply desertion?. According to U.S. Code § 899 – Art. 99, a soldier commits misbehavior before the enemy when he or she:

1) runs away

2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;

3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;

4) casts away his arms or ammunition;

5) is guilty of cowardly conduct;

6) quits his place of duty to plunder or pillage;

7) causes false alarms in any command, unit, or place under control of the armed forces;

8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or

9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle;shall be punished by death or such other punishment as a court-martial may direct.

If Bergdahl is convicted of misbehavior before the enemy, he could be sentenced to life in prison.