Misbehavior before the enemy

Noah Feldman on Bowe Bergdahl.

Lincoln hanged "leg cases," men who ran from battle.

Punishment of Americans was severe but not so often capital in the big wars of the 20th Century.

Such punishment is particularly unfair when used against draftees - would you draft masses of untried men into high iron work and then punish those who turn out to be terrified of heights? - and yet keeping draftees from running away by making them more afraid of leaving the battlefield is its chief use.

Here is Feldman.

As late as World War II, the charge was apparently used frequently against combat soldiers who fled or otherwise displayed cowardice. 

In the long war that began on Sept. 11, 2001, desertion charges have been frequent, but the misbehavior charge has been extremely rare, used in only a handful of instances.

There’s something positively archaic about criminalizing fear, as the brilliant (and brilliantly quirky) Bill Miller of the University of Michigan Law School noted in 2000 in one of the very few contemporary academic articles about the misbehavior crime: “Making cowardice a capital offense strikes us as a kind of barbaric survival from a rougher age.” 

We no longer think that pure fear in the face of combat should be harshly punished.

We?

Anyway, in BB's case either he won't be convicted on that charge or it won't stick, since it's pretty clear he didn't desert out of fear and he didn't desert in actual battle.

But the desertion charge will stick.