Bergdahl case spotlights military justice system driven by politics, fear


Rachel E. VanLandingham, Opinion contributor
Published 3:15 a.m. ET Oct. 13, 2017

You might not care about Bergdahl, but this is the system meant to protect all our soldiers. And it’s hugely vulnerable to inappropriate influences.

Sergeant Bowe Bergdahl’s court-martial casts an ugly stain on the military justice system. And Americans should care. Not because of sympathy for Bergdahl, who is poised to plead guilty to desertion and misbehavior before the enemy. We should care because the military justice system protects our sons and daughters who serve our country in uniform. We should know if it’s broken for their sake, and demand change.

Bergdahl’s case reveals how broken military justice is. It demonstrates a systemic flaw in how charges get to trial, in that military prosecutorial decision-making is hugely vulnerable to inappropriate influences. This defect stems from the fact that high-ranking commanders — not district attorneys like in our cities — decide how to dispose of allegations of misconduct in the military. Military commanders are supposed to make individualized decisions about whether to prosecute service members based on the facts at hand, free from unfair factors such as worry about their own careers. Reality is different. 

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Army General Robert Abrams (a career military man from a family of generals) made the decision to court-martial Bergdahl soon after Sen. John McCain, chairman of the Armed Services Committee, publicly threatened hearings if Bergdahl wasn’t punished. In order to move to his next assignment, Abrams, like all commanders of his rank, needed Senate confirmation that first had to go through McCain’s committee. So does anyone really think McCain’s comments had no influence on Abrams’ decision to court-martial Bergdahl? 

This appearance of inappropriate influence undermines our belief that the military justice system is fair. A system that gives prosecutorial discretion to non-lawyer commanders whose very careers depend on remaining in good congressional graces is by definition not a fair one. Just think of anyone serving in the military today who is falsely accused of sexual assault, a lightning-rod issue on Capitol Hill. 

Will a commander risk not sending a sexual assault allegation to court-martial, even if the evidence shows prosecution isn’t warranted? Doubtful, not if they want to preserve their careers. Is this a system worthy of our warriors? A better one would do what every other criminal jurisdiction in America does — allow trained lawyers who are immunized from such career concerns to decide what and who warrants criminal charges.

But the Bergdahl stain goes deeper than revealing this one systemic defect, and extends to the White House, whose current occupant further damaged the military justice system by exploiting the Bergdahl case on the campaign trail. The 45-plus times then-candidate Trump publicly called Bergdahl a traitor, or that he should be shot as a traitor, or pushed out of an airplane for being a traitor, left an indelible mark on the psyche of service members.

These are soldiers trained to follow the commander in chief’s bidding. And they are the same service members who would have sat on Bergdahl’s jury.

Do we really believe that a fair trial, before a jury of soldiers inculcated to obey their president’s orders, could be forthcoming in such a polluted environment? A jury that, in the military, gets to decide the defendant’s sentence as well as conviction? The military justice system failed here because it would have allowed exactly such a poisoned atmosphere. It’s no wonder Bergdahl decided to plead guilty to a military judge. 

Looking back — prior to McCain’s comments, the political uproar over the prisoner exchange for Bergdahl and Trump’s inflammatory rhetoric — a Bergdahl court-martial could have been reasonable. Bergdahl admitted to leaving his combat outpost in Afghan enemy territory in a delusional Jason Bourne attempt to bring attention to poor leadership (though his delusions shouldn’t have been a surprise to the Army, given that they negligently enlisted Bergdahl after the Coast Guard had discharged him as unfit for military service). Bergdahl’s vainglorious act had tragic consequences — both for the soldiers grievously wounded while looking for him, as well as for Bergdahl himself, who wound up tortured by our nation’s enemies for almost five years. 

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While his long captivity frankly served as his just desserts and then some, a court-martial could have been seen as necessary both for the sake of additional deterrence, and out of a sense of justice for the other victims.

But Bergdahl’s court-martial long lost any veneer of reasonableness. It is now a symbol of what needs to be fixed so that the military justice system is actually one of justice, and not one of retribution or political expediency. The Army has spent years in its almost maniacal pursuit of Bergdahl to please its political masters, as well as who knows how many hundreds of thousands of dollars. This zeal surely could have been better directed toward improving military readiness and addressing the sexual assault plague that still infects the ranks.

Even if you don’t think Bergdahl deserves a fair military justice system, the rest of those in uniform surely do. 

Rachel E. VanLandingham, an associate professor at Southwestern Law School and vice president of the National Institute of Military Justice, is a retired Air Force lieutenant colonel who served as a judge advocate while on active duty. Follow her on Twitter: @rachelv12.

 

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