day, mgssbhg says waffles with maple syrup two cups oné green tea. charles says lots of butter and maple syrup, a banana sliced on top and glass of milk also. i'm gretchen, here's shep. >> charging bowe bergdahl. the u.s. army sergeant spent yearsgl white house traded him for five guantanamo bay detainees. his lawyer says the army is to charge him with des certification. we could very well find out what investigators learned in a news conference scheduled minutes from now, so let's get to it. >> shepard smith reporting live from the fox news desk. >> now we know the military will charge sergeant bowe bergdahl with desertion the highest possible charge

short of treason. military investigators are set to speak to the media less than a half hour from now. this comes after nearly a year of investigation into sergeant bergdahl's time in afghanistan and how he ended up as a taliban prisoner of war and his actions while in custody. sergeant bergdahl spent five years with the taliban. many prisoner of war groups and supporters demanded he be released. some even slammed the white house for not doing enough to bring home the u.s. servicemember dubbed america's last prisoner of war. last may the united states swapped five taliban prisoners in exchange for the freeing of sergeant bowe bergdahl. president obama hosted the sergeant's parents at the white house, but controversy8q erupted within hours of his arrival back here in the united states. some of his fellow soldiers made the rounds on tv, accusing him of desertion. they say he abandoned his post before the taliban caught him. some even called him a0

and so they did. now, according to bergdahl's own lawyer, the military is backing those desertion claims from his fellow soldiers. this hour we should be able to fill in the details like what exactly the investigators found and why exactly sergeant bergdahl would have walked away from his post without his gun in the first place. jennifer griffin live from the pentagon. what are you learning? >> a senior u.s. military source confirms that sergeant bowe bergdahl will not only be charged with desertion but also misbehavior before the enemy. when the general speaks in 30 minutes from

carolina he's the senior in the army charged with reviewing the investigation and i'm told by well-placed army sources briefed on the investigation sources that bergdahl will face multiple charges and they will not rule out that he will face jail time and a court-martial dril.trial. his lawyer said he will not speak to fox news but told other news organizations that he and his client have not decided how to plead. we were told repeatedly by the pentagon and senior army officials the general was slowly making his way through the 1,200-page investigation when news first leaked six woekz ago bergdahl would be charged with desertion. there was a great deal of pushback at the pentagon regarding any suggestion the army general made a decision. what i can tell you today the press operations herezh at the pentagon were caught off guard by the announcement at ft. bragg and were not briefed on the decision. there's been a great deal of effort to ensure there is no

perception of command influence from above from any pentagon leader.kñ shep? >> stipulating there is no excuse for desertion do we know from your reporting the reason they believe he deserted? >> shepard, we will know in about 30 minutes' time but what we do know is that he sent certain items home from the base. we know that he left the base without hisáweapon and he also cooperated with investigators, with army investigators when he returned to texas, and i'm told he was very frank and very forthcoming about what he did, why he did it and i believe that that is what is included in those 1,200 pages that army investigation that general milley has been making his way through. >> details should be fascinating, thank you. the last three of the five taliban leaders the united states officials traded for sergeant bergdahl are27 trying to get back into terrorism that's what a government intelligence official tells our own katherine

harris live in washington with more. what else are we learning about the taliban five leaders? >> a government official familiar with the intelligence confirms to fox news three of the five taliban commanders tried to plug back into their terror networks describing it as a form of reengagement. they did not dispute the reporting emphasizinmi]) one of the men has come "very close" trying to provide advice counsel orbv inspiration to their contacts while the other two had not crossed that line. without getting into classified information a member of the house intelligence committee says the evidence is damaging. >> i've seen nothing that causes me to believe these folks are reformed or changed their ways or intend to reintegrate into society to give me any confidence that they will not return to try to do harm to america. >> the state department official contacted by fox news disagreed with this assessment the, saying the taliban spies activities did

not meet the strict criteria for reengagement laid out by the u.s. intelligence committee which takes into account the motivation and intention of each of these communications. >> are we learning anything about the information that sergeant bergdahl provided katherine? this account was not disputed by a defense official. fox is told there were multiple options under discussion beyond the troersial swap for the taliban five to get bowe bergdahl rescued and they included a so-called snatch and grab rescue mission, contracting out the search to a third party with the extraction or recovery of bergdahl for a fee, as well as working through the pakistani intelligence service also known as the isi. this account that there were multiple options available to the administration and under

consideration was backed up by a separate government source, shep. >> thanks. so what happens now, judge andrew in anapolitano is live. the first step is what? >> the first step will be some!( c1 negotiation back and forth between defense counsel and the prosecutors as to what they want. the first question he wants to ask is, are you going for the death penalty, because these charges are so serious and such a high level breed of desertion there are many gradations, this is among the highest if someone died in pursuit of him and we know arguably tthat happened, the government can seek the death penalty. thereafter bergdahl can insist on article 34 hearing fancy phrase for a grand jury, instead of a grand jury meeting in secret with 23 grand jurors and only the government present as we have in the civilian world this will be a public hearim1ñ one judge serving as a grand juror, the government has to present enough of its case to satisfy that judge that there is probable cause to believe that

this defendant committed these crimes and the government has enough evidence to prove it. >> in civilian court that's a probable cause hearing but with an enormous distinction. >> well, civilian lawyers salivate at the advantage that military defense lawyers have. here is the advantage. his lawyer, eugene fidel and a lot of us know this guy one of the best military defense lawyers in the country retired admiral, used to do the prosecuting, gets a chance to cross-examine the government witnesses at the grand jury, the article 34 hearing long before there's ever actually a jury trial. this is an enormous advantage which ayou loss the defense to explore the knowledge ofi- the witnesses in ways that wouldn't be permitted at an actual trial for guilt. >> the argument on the part of the government may be, we haven't heard it yet but it could very well be that someone died while trying to help rescue him. therefore, will make the argument possibly he deserves

the death penalty is that what you're saying? >> that is the trigger for the death penalty. the government would have to prove the manner of this soldier's death and that it was directly related to the government's efforts to find him or rescue nm/ short of that because they've charged him with this high level of desertion, they have to prove that he left intending never to return and left intending to help the enemy. these are very very high standards of proof. when you don't have the enemy there to provide the testimony. so i suggest that much of the testimony against him is going to be things he told the government in the past nine months, while they've been interrogating him and investigating the case. >> and they say he has been cooperating? >> yes. >> so there will be that for civilian, and civilian words, probable cause hearing, and then after that there's a court-martial? >> there will be the court-martial which will be a jury trial, similar to a civilian jury trial with 12 jurors from across the military and enlisted members of the military, as well as officers. it will be a public trial, at which we can be present, but no

cameras are permitted. the government must prove its case beyond a reasonable doubt, same standard of proof as in a civilian criminal trial. >> some local prosecutors and some district attorneys office for media event like this one will come forward with chapter and verse of what they found and what they believe this person did. others won't. irç wonder what the government is about to do. >> i think we'll hear some chapter and verse in 15 minutes as soon as they come on your show and you broadcast, you air it. >> they may talk about whether they're going to seek the death penalty and the details ofeiiar what they believe he did? >> i'd be surprised if they say today whether or not$they're going to seek the death penalty because that is a weapon that they would want to use in negotiating with admiral fidel, the defense lawyer, in an effort to get a guilty plea. the government wants a guilty plea. they do not want a jury trial, because one of the witnesses in the jury trial if it's held more than two years from now could be former president ot,áá as to the circumstances under which

there was a controversial swap made for this guy. >> the government could subpoena -- >> the defense counsel could subpoena at the time the former president. >> the former president. >> correct. the government wants this guy to plead guilty and want him to go away and want the case to go away. >> man i'm looking forward to this news conference. >> yes, same here. >> the details of the bergdahl desertion charges and the next steps ahead. plus the mysterious crash in the alps. investigators pulled audio recordings from one of the black boxes of that downed german jetliner but will they explain what made that jet start the death decent and crash at 400 miles an hour into the side of the mountain and what we know about the americans in the crash. it is a very busy news day on the fox news deck and we're glad to have you. ♪ ♪ ♪ sustainable tea tree oil and kale... you, my friend, recognize when a trend has reached critical mass.

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al fire heating plants and prevent 60 million tons of co2 emissions? when emerson takes up the challenge it's never been done before simply becomes consider it solved. emerson. . prutal honesty from investigators in france. they say they do not have the slightest idea why a germanwings jet crashed yesterday into the mountainside of the french alps killing all 150 people on board. that's as we learn new information about the time line of events that makes the mystery of this crash even stranger. investigators say after the jet took off from barcelona and reached that cruising altitude the pilot did speak with ground controllers, just 60 seconds before it started to go down. everything was absolutely normal. they say the gradual descent

lasted for ten minutes, even longer than first reported. >> they had reached the cruising altitude for a while, 38,000 feet, so around 9:30, the last message emitted by the plane issued by the plane to the control center was a routine message confirming the instructions given by the control center which was it was authorized to continue on to the point you see. >> everything absolutely normal. radar records show that's when normal ended. ten-minute descent that was controlled as investigators put it, as if the pilots or the plane's computers were still completely in charge. but for some reason, the pilots never contacted ground controllers at any point as they gradually dropped to their deaths. crews found one of the black boxes. it is damaged, and then they found the casing of a second black box, but investigators say even the damaged box might still provide some very important clues. >> we just succeeded in getting an audio file which contains

usable sounds and voices. we have not yet fully understood and worked on it to be able to say, okay, this is starting at this precise point in flight this is ending at this precise point in flight, and we hear such persons saying that this is an ongoing work for which we hope to have first a rough idea in a matter of days and having a full understanding of it in conjunction with all the other information coming in particular from all the other recorded parameters will take weeks and even months. >> again, 150 people died in that crash. u.s. officials now confirm that includes three americans, a man in virginia says his wife and daughter were on board. i thought it was two americans. but this says three. but it's three now.

the daughter sorority at drexel university in philly posted a memorial on facebook, it reads "as a person and a friend emily always put others before herself and cared deeply for all of those in her life." our leah gabriel has been following this from the beginning a u.s. navy pilot herself retired. they found one of the black boxes. what do they do? >> shep, they found the cockpit voice recorder and looking for the flight data recorder, that would have information on the different parts of the airplane and how they were functioning throughout this flight. now today france's president said they may be close to finding it. take a listen. >> we found the casing but unfortunately the black box itself has not been found yet. as i speak now, men are on the site to search and search again, and they'll carry on until we get the results expected. >> but the top french aviation investigator disputed that today. listen. >> translator: this rumor is note at all confirmed. we have not located the black box we have not found scattered

debris from the black box. >> he said it would be important to get the information from the flight data recorder and use that in conjunction with the sound from the cockpit, shep to piece together what happened here. >> the sound from the cockpit is important. two are gap what were the pilots saying, was there quivering in their voices which might have katded some loss of pressurization, was it silent, which meant they couldn't do anything. are they giving us any idea if it they have a clue about what may have happened? >> leading to there is the possibility of a loss of pressurization, a loss of oxygen in the cockpit and that's a question that reporters were really pressing the lead investigator from france today but he really wouldn't respond one way or another. we did learn that last transmission, that last call from the cockpit came about a minute before the plane started its descent. as a pilot i can tell you that does not rule out a loss of cabin pressurization. the reason being at high altitude you can lose oxygen so quickly you only have a few

seconds to get it back down to where you have better air and more oxygen and to use your alternate source of oxygen before you essentially pass out. the loss of cabin pressurization still very much at play among the other things that could have happened. >> the cockpit voice recorder is going to be huge. >> very telling. >> hope that works. the u.s. army plans to charge sergeant bergdahl with desertion among other things but there are a lot of things we do not yet know, among them, the details of his disappearance. do they know what his plan was? how helpful has he been snt military spent months investigating exactly what happened and in just a few minutes the army is set to hold a news conference and answer some of the biggest questions. for instance did someone die as so many claim while looking for him, and if so, should sergeant bergdahl, as our judge in a napolitano suggests face the death penalty? we'll take you there live for

uninterrupted news conference. plus escaping country by boat, was that story a decoy to throw off his enemies? there is a civil war brewing and the war on terrorism is very much in the balance. we'll tell you exactly what we're learning and that's next. before earning enough cash back from bank of america to help pay for her kids' ice time. before earning 1% cash back everywhere, every time. and 2% back at the grocery store. even before she got 3% back on gas

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so many networks all in one place. get live tv whenever you want. the xfinity tv go app. now with live tv on the go. enjoy over wifi or on verizon wireless 4g lte. plus enjoy special savings when you purchase any new verizon wireless smartphone or tablet from comcast. visit comcast.com/wireless to learn more. just a few minutes now until a schedule the news conference on the details of charges against army sergeant bowe bergdahl. we'll have it for you live. while we wait conflicting reports today over the whereabouts of yemen's president. yemeni officials tell the associated press that he has left the country that he did so by boat under heavy security, in other words, high-tailed it out as militants were taking over, after iran backed militants forced him from a keyport city.

reuters is told he's still in the city. the ap reports the rebels have taken over the local airport in aida aden right on the sea. they launched air strikes targeting the presidential palace and its guards. the rebels claimed they seized yemen's largest airbase about 35 miles to the north of that city. that base was a crucial part of u.s. drone campaigns against al qaeda's yemen affiliate. american officials called the terror organization's most dangerous splinter group the one that's right there. local media report al qaeda fighters and supporters of the missing president have looted the base. yemen has been an enormous part of america's counterterrorism strategy in that region but despite yemen's crumbling government, the white house seems to be giving the impression that everything is okay. it says the united states is still in contact with yemeni

officials and is still able to take out extreme is there. the state department spokeswoman said yemen is still a successful model for counterterrorism. julie pace is a white house correspondent for the associated press and joins us live. julie, help us understand under what pretense they make that claim. >> reporter: this is a claim that president obama first made about six months ago when he was actually announcing to the american people the air strike campaign in syria and iraq and he said that yemen as well as what the u.s. has been doing in somalia was basically the model, the template for what he was going to do in syria and iraq, and when he says that, what he means is the focus is on building a central government, boosting local security forces, using u.s. air power, but not putting a substantial number of u.s. troops on the ground. so when the white house and the state department are saying now that yemen is still the model they're basically saying that template is still what they want to follow but obviously incredibly difficult right now to argue that that model is

working in yemen. >> okay that's what they're doing today and yet i know from reading your fine work, julie, and that of so many of your colleagues and our colleagues that yemen is dissolving into something on the border of if not right on top of civil war. i mean, the rebels have clearly taken over haven't they? >> absolutely. they pushed president hadi from the happental. he ended up fleeing to the port city of aden as you said. now his whereabouts our colleagues there are reporting he fled the country. it really is, if not as you say in a full scale civil war certainly on the brink of a civil war and one of the biggest concerns for the u.s. is not even just this group, this rebel group that has taken over so much territory but it's that in the chaos of that aqap, al qaeda and the arabian peninsula will seek to capitalize on that. they're perhaps the most terrorist organization in the world and we know from past

experience that terrorist organizations like to take advantage of chaos. >> they're not the only ones. there are two other major groups fighting for some sort of control and power. they're on the border of a very important country for the iranians. >> there's certainly a reason why yemen has been so strategically important for the u.s. it is in a very dangerous neighborhood. there is iranian influence in there, the huti rebels are linked to iran. u.s. officials say they don't have any sign there is command and control happening from tehran but certainly there are links between the iranian government and this rebel group and if you just look at maps of this region and you see where yemen is and we know what's happening in all the other countries, any time you have a country in this area that is in the midst of civil war that, is creating safe havens for extremists there are huge risks about the spillover potential. >> no question. julie i wish we had more time. the army is about to have the

bowe bergdahl news conference. julie pace, we rely on your reporting every day and thank you so much. >> thanks for having me. the u.s. army set to hold that news conference i mentioned moments from now on the charges against sergeant bergdahl charges including desertion, after the united states traded five taliban commanders for his release. we're going to take a quick commercial break so we don't miss a moment of it, it's coming up next on fox news channel.

there is breaking news on fox news channel you are looking live, this is ft. bragg in north carolina, from the is afacilities of our network news affiliate wral. we'll hear the statement on sergeant bowe bergdahl. let's listen. >> good afternoon ladies and gentlemen, and thank you for coming to ft. bragg today. i'm colonel daniel j.w. king,

spokesman for u.s. army forces command and i'll provide you a statement with regard to the army's investigation of sergeant robert bowdry bergdahl's 2009 disappearance in afghanistan. due to the specific and legal nature of the information i'm about to provide, i am unable to take your questions, but our staff here will provide you with a copy of this statement and points of contact to address your questions at the conclusion of this statement. our statement follows. the u.s. army forces command has author rely reviewed the army's investigation surrounding sergeant robert beaudry bergdahl's 2009 disappearance in afghanistan and formally charged sergeant bergdahl under the armed forces uniform code of military justice on march 25th, 2015 with desertion with intent to shirk important or hazardous

duty and misbehavior before the enemy by endangering the safety of a command, unit or place, and has referred the case to an article 34 preliminary hearing. again, sergeant bergdahl is charged under the uniform code of military justice with one count of article 85 desertion with intent to shirk important or hazardous duty and one count of article 99 misbehavior before the enemy, by endangering the safety of a command unit or place. as you recall, sergeant bergdahl disappeared june 30th, 2009 from combat outpost in paktika province afghanistan and was subsequently captured. regarding next steps, an article 32 preliminary hearing is a legal procedure under the

uniform code of military justice, designed to determine whether there is sufficient evidence to merit a court-martial and is required before a case can be tried by a general court-martial. legal experts often compare an article 32 preliminary hearing to a civilian grand jury inquiry. the article 32 hearing will take place at ft. sam houston, texas. specific scheduling details and procedures for news media coverage of the hearing will be announced at a later date. following the article 32 preliminary hearing and receipt of the article 32 preliminary hearing officers' recommendations, the report will be forwarded to a general court-martial convening authority, who may refer the case to a general court-martial refer the charges to a special

court-martial, dismiss the charges or take any other action deemed appropriate. there are potential punishments associated with the two charges. article 85 of the uniform code of military justice, desertion with intention to shirk important or hazardous duty, carries a maximum potential punishment of a dishonorable discharge reduction to the rank of e1, total forfeiture of all pay and allowances and a maximum confinement of five years. article 99 of the uniform code of military justice, misbehavior before the enemy by endangering the safety of a command unit or place carries a maximum potential penalty of a dishonorable discharge, reduction to the rank of e1 total for if ifeiture of pay and

allowances and possible confinement for life. the specific legal elements associated with article 85 and article 99 are available within the written statement provided to you here today. forces command officials associated with this legal case cannot discuss or disclose the findings of the 2014 investigation while legal actions are pending, out of respect for the judicial process, the rights of the accused, and to ensure the proceeding's fairness and impartiality. the army's 2014 investigation into the circumstances of the soldier's 2009 disappearance and capture in afghanistan is currently being treated as potential evidence in the pending article 32 preliminary hearing. this concludes our statement. thank you.

>> well there you have it the process is to begin now. we don't know the exact date. first what amounts to a grand jury hearing but in the military justice and then what amounts to the possibility of up to life in prison. three guests with us today katherine harris live in d.c., judge andrew in anapolitano in new york and julie pace white house correspondent for the associated press and live with us from ap. they're not saying anybody died here. they're saying there was a possibility that somebody could have been injured or and/or a unit could be in danger therefore he could get up to life. >> it is not too late for them to seek the death penalty, but it sounds to me as though it is off the table. the language that we just heard and candidly we now have copies of would have been much harsher and the allegations more precise and they would have given the name of a soldier who said died as a result of the search for them if they'd use that as a

trigger to seek the death. ality. >> katherine, thoughts? >> my thoughts are that it's a severe charge, if it's proven to be so it's a complete reduction in the rank and at the least based on the information we have at fox news this decision to proceed with desertion picks the scan of the whole controversial swap for the taliban five because our information from a government official, who is familiar with the intelligence, is that at least three of the five men have tried to reconnect or plug back into their old terror network contacts. the question is, what is their ultimate intention and we're going to find out pretty soon,n, because the one year house arrest in qatar expires at the end of may, shep. >> julie pace from associated press, is it the white house's contention you live by the rules we've always lived by in the united states, leave no soldier behind under any circumstances,

all stop that the idea here was get sergeant bergdahl home, and then begin the process, and the white house made the judgment that the way to get him home was to trade prisoners for this soldier. according to your reporting, is that on point? >> yes, that is on point, and what they were saying is that this is coming at a time when the u.s. military was going to be withdrawing from afghanistan that there wasn't going to be forces in place that could try to find him, search for him in other ways so they thought this trade was the best way to get him home. obviously there's criticism of the fan fair that followed his release with his parents coming to the white house, a talk about his honorable service. officials knew that this was a possibility that he had deserted his unit. it certainly puts a bit of a stain on the celebration that we saw last year and as catherine says, there's a lot of concern about the five gitmo detainies sieeedetainees, the question when they get

released when the one-year term is up in qatar if they go back to afghanistan. >> a disinterested party looking for facts could listen to the white house argument and say okay your argument has historical precedent you made a trade and you got our soldier home. the part that is confusing to this day is all the pomp and circumstance that you just mentioned. has the white house said whether they realized that this controversy existed whether they were of an understanding that he had walked away without his gun did they not know what was going on or do this for some reason that i can't, for the life of me figure out? >> we haven't gotten a really clear answer on this yet. we do know that officials were aware that there was something about his disappearance that had led people to believe that he may have deserted that he may have walked away from his unit. it's not as though people weren't aware of this in the white house. officials i talked to at the time said they felt like the story of his homecoming the fact that an american was returning home after being in

detention for five years would make the public feel a sense of pride, that we had gotten an american back, whatever the circumstances of his disappearance. it is one of our tenets here that we don't leave a soldier behind, so i think they were surprised by the backlash, certainly felt like the fact that they had gotten an american home should have been something that americans should have felt haier about. >> of course, catherine, the military minutes, many of them, not all, but many of them, have said he walked away without his gun. now, do we need to bring him back? yes, we need to bring everybody back, but a parade for this man? they came out loudly, catherine and quickly. >> i would agree with julie's assessment that the white house was really taken by surprise at the backlash over the trade of bergdahl for these taliban five especially given what was known about his disappearance back in 2009, and i think looking

forward, the information we've been able to pull together here at fox news is that this swap for the taliban five was not the only option on the table and under consideration. the white house had other options, but chose this controversial option instead. we don't know why that was but based on our reporting one of the options was one of these so-called snatch and grab rescue operations that's obviously very risky and based on specific intelligence. another was to take this job and contract it out to a third party who would try and recover bergdahl for a fee and the other was working for the pakistani or with rather the pakistani intelligence service. so the fact that there were other options and they chose this option, we haven't really heard a good defense on why they felt this was the best option, given that it was high risk because of who the taliban commanders were. remember, these were the five guys the taliban asked for. it's not like we gave them a bunch of guys that we didn't think were important to them. we gave them sort of the home

run kings that they were looking for, and now we have evidence at fox news that at least three have tried to reconnect with their old network. what does that mean? we'll find out pretty soon in early june what that really means and what their intentions are, and that will be an even greater controversy if they go back and a greater tragedy if they end up killing more americans, shep. >> julie i think reasonable people can disagree reasonably about the tactics used to get him back, about the swap and the rest. what seems really almost indefensible to so many observers of this is that they had this huge show and brought in the family and said, look at what we've done when everyone who knew anything about this knew this man walked away without his gun. i didn't know why nobody knew why. yes, you have to get him back but really? a big show at the white house? this is what you think is going to be helpful for the american people? >> and certainly you wonder if

now looking back at this if that's something that the white house regrets, not just because of everything that's come out about what happened with his unit, but there were uncomfortable details he didn't want to see his family after he returned. this is a man who you know, was in captivity for five years, didn't want to see his family. that raised a lot of questions about what had been going on here, what kind of state he was in, and to put the family up there on display like that i think, was questionable to some people. i think that one thing that we should watch for over the next couple of months is whether the administration asks the qataris to keep the gitmo detainees there for a longer period of time. they'd have to get agreement from the government to do that. you can imagine the administration would rather have them monitored by the qataris and u.s. intelligence agencies than sending them back into afghanistan where they could potentially get them back into the fight. >> i want to go through the details of the charges. they read the you first page but

the second page which they did not read has to do with what means you're guilty. for instance under 85 which is desertion with intent to shirk important or hazardous duty, there are five different ways that you can prove you're guilty of that, and on the specific elements of article 99 which is misbehavior before the enemy by endangering the safety of a command unit or place, there are four different counts, four different ways to prove guilt, and again, up to life in prison for it. so what are those five things and the four things for article 99? we'll go through them chapter and verse in detail after this.

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all right so the details of the charges against sergeant bergdahl, the first charge can get him up to five years in prison and it is desertion with intent to shirk important or hazardous duty. five things you have to prove

right judge napolitano you have to prove all of they will. >> you have to prove all of them. >> number one, he was accused -- >> he quit his place of duty he left. >> the accused quit his or her place of duty and second with the intent to avoid certain service. >> right, wasn't a mistake that he left right. >> third the duty to be performed was hazardous and important. >> he was in a dangerous place, he was in an active military zone when he left. >> number four the accused knew he or she was required for service or duty? >> he didn't he intentionally left. >> and number five the accused remained absent until a certain date. >> that is key, what gets him the five years the fact that he sent things home, he sent clothing home he knew he was going to be gone for a long time. >> if they can prove all five of those he goes away for a maximum of five years. article 99 called misbehavior before the enemy by endangering the safety of a command, unit or place. think of that misbehavior

before an enemy. hang on have to prove four things. one the accused has a duty to defend a unit or place. >> clearly he did. he was part of a group defending territory. >> number two the accused committed misconduct. >> he left. >> number three, the accused thereby endangered the unit or place. >> we don't know what the danger was. that's going to be very interesting. >> and number four -- >> the kicker. >> -- the act occurred before the enemy. >> meaning in front of the enemy. this is what gets him the exposure to life in jail in prison, that he did something to harm american troops after he got there, after he dezzered, while he was staying with the enemy.spective it's interesting what that evidence may be. it might be surveillance. it might be his own words, it might be from the enemy deserted to our side who can testify what he did. this is the kicker that is his defense team's nightmare. >> they might have some sort of satellite view of it? they might have him confessing

to something? >> correct. >> we don't know what it is. >> we don't know what it is, but this is the most serious charge. >> catherine herridge, how do they go about this?charge. >> how do you -- katherine, how do they go about this? he's been cooperative. it's not to suggest he would still be cooperative, would it? >> not really. i was just thinking about the possible evidence, and just to add to what the judge said, it's entirely likely there are nsa intercepts of taliban commanders discussing his captivity. but that i think, is one of the big headlines you have hit on. what was the act while in captivity that further endangered u.s. military members? he was debriefed after he was swapped for the taliban five, and our contact says that he did provide information, there were essentially two buckets of information. one was about his transit from

afghanistan to pakistan. the other was about his captors. but nothing was seen as anything that would be pursued in the future. >> we'll take a quick break and come back with exactly what this first hearing is going to be, how it will work and what we will learn. that's next. ♪ grind virtually any kind of food waste into an unending source of electrical power for a city?

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now with live tv on the go. enjoy over wifi or on verizon wireless 4g lte. plus enjoy special savings when you purchase any new verizon wireless smartphone or tablet from comcast. visit comcast.com/wireless to learn more. wrapping things up around here, with discussion of something i frankly hadn't thought about it. sergeant bowe bergdahl has just been charged officially with crimes that could if convicted down the road land him in prison for the rest of his life. >> he's probably been arrested. it's almost inconceivable he could still be free formally facing a charge that could result in incarceration the rest of his life. in the civilian world the fbi

picks you up when these charges are released. >> and there's a bond hearing within 24 hours. but that's not how it works in the military. >> i doubt he would get the bond hearing that quickly in the military. what he will get is this article 32 hearing, the sort of military version of a grand jury. >> but with the military, as the gentleman discussed with us, it's one person serving as a grand jury. >> correct, one judge, usually a colonel, who can throw the charges out or say there's enough here i'm sending you on to an old fashioned military court-martial. >> and just like a grand jury, it's a recommendation. >> yes which can be accepted or rejected by whoever bergdahl's commanding officer is. >> and then there's what amounts to a full-on trial in front of a nil military judge. >> yes, that will look like a civilian trial, except the jurors will be in uniform. the military's goal is to have a complete microcosm of the u.s.

military in that jury box in terms of race, age, rank and gender. >> and if bowe bergdahl wants to stand up and defend himself before the court he can do that? >> you're talking about at trial? answerbsolutely absolutely. >> this could drag on for how long? they're swifter in the military. >> i don't think he'll be tried until after barack obama is out of office. >> why do you say that? political reasons? >> no no. politics may have little bit to do with it but there is so much material to be digested by defense counsel and to be challenged by defense counsel and defended by the government in the presence of the judge who will preside over the case. lit take a very long time. >> between now and then he's locked up? >> i would think he would be locked up facing life in prison. i don't think they're going to trust him to show up at 8:30 in the morning. >> judge, thanks so much. bret baier with much more on

this at 6:00 eastern time, 5:00 central. for now, a quick look at the dow. the dow is off 276 points, and the reason? some negative signs out there today that the market has been volatile. quick break, then cavuto. i love making sunday dinners. but when my back hurt, cooking all day... forget about it. tylenol was ok, but it was 6 pills a day. but aleve is just 2 pills all day. and now, i'm back! aleve. mouths are watering, and stomachs are growling. or is that just me? it's lobsterfest

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after that swap, wondering if it was really, really worth the fuss. welcome, everybody, i'm neil cavuto. this is your world. 10 months ago, his parents joining president obama celebrating the release of their son. today, the u.s. military charging that son with being something else a deserter. and growing concern this very hour whether the five taliban detainees this country traded to bring army sergeant bowe bergdahl back here is really coming back to bite us all now. and while there is little desire to see bergdahl behind bars,