Sgt. Bowe Bergdahl is returning to active duty shortly after his rescue from five years in Taliban captivity. Many are questioning the decision given that he is a suspected deserter.

Earlier on Fox and Friends, Judge Andrew Napolitano said the evidence that Bergdahl is guilty of desertion is “overwhelming.”

The judge noted, “Even in the military you are innocent until proven guilty.”

However, Judge Napolitano called it “odd” that the government has yet to interview Bergdahl’s platoon mates.

“Megyn Kelly interviewed all of them at once […] and the government can’t get them together interview them,” he said. “Something’s not right for this crime – desertion – very high up on the hierarchy on the crimes in the military.”

Judge Napolitano explained that government is “duty bound” to charge Bergdahl if they have enough evidence against him.

“If he’s not being charged just to make the president look good, they are duty-bound to resign and to blow the whistle on the president of the United States,” he said.