Commentary: Bowe Bergdahl and imbalance in the military justice system. What do you think of the author's argument?

GySgt Wayne A. Ekblad — Sun, 21 Jun 2015 12:25:16 -0400

Rachel VanLandingham is the author of a recent commentary in the Military Times. She writes:

Over the last few years the U.S. military has been regularly raked over congressional coals regarding its mishandling of sexual assaults within its ranks.

The role of commanders and their incredibly vast power within the military's criminal justice system has stood front and center, with Sen. Kirsten Gillibrand continuing to question why such non-lawyers make all the criminal prosecutorial decisions within the military, with very little formal guidance or constraints. Her proposal to remove the chain-of-command from prosecutorial decisions regarding certain types of crimes (such as sexual assault) has failed for the second year in a row as the military begs for more time to fix itself.

While military leaders protest they will finally improve the fundamental flaw of the archaic military justice system — the unchecked and vast power it gives untrained and legally inexperienced commanders to practice law — continues its unjust march forward.

The systemic flaws in the military justice system are in stark relief in the current criminal case of Sgt. Bowe Bergdahl,a prisoner of war in Afghanistan for almost five years and released last year as part of a prisoner exchange involving Taliban detainees from Guantanamo Bay. The circumstances of this exchange remain political hot potatoes, with Congress recently threatening to withhold 25 percent of the Department of Defense's funding if it doesn't turn over documents to Congress regarding the Bergdahl swap.

What does this continuing political maelstrom over former GTMO detainees being swapped for Bergdahl's release over a year ago have to with the structural weaknesses of the military justice system? Plenty, because it demonstrates the military's refusal to recognize checks on the power of its commanders. Apparently assuming that five brutal years as a prisoner of the Haqqani Network (cohorts of the Taliban) wasn't sufficient punishment, the Army recently decided to initiate criminal proceedings against Sgt. Bergdahl for improperly leaving his post in a warzone.

http://www.militarytimes.com/story/opinion/2015/06/21/bowe-bergdahl-sexual-assault-military-justice-system-imbalance/28982701/

Commentary: Bowe Bergdahl and imbalance in military justice system

Editor's note: Rachel VanLandingham is an associate professor of law at Southwestern Law School and served as an active-duty judge advocate in the

Response by MSgt Private RallyPoint Member made Jun 21 at 2015 1:02 PM

MSgt Private RallyPoint Member — Sun, 21 Jun 2015 13:02:43 -0400

What's wrong with official policy Gunny.....if you enlisted your life is over and if you a retired general in the CIA you get a book deal........is that not fair?

Seriously I feel the problem is more of over-reaction to legitimate cases that has made something as minor as having a Sports Illustrated in your office a crime on par with grabbing someone's ass. The pendulum needs to be reset before this issue will ever be appropriately dealt with.

Response by PO2 Skip Kirkwood made Jun 21 at 2015 1:23 PM

PO2 Skip Kirkwood — Sun, 21 Jun 2015 13:23:08 -0400

Too much law (or lawyers) and not enough justice is killing a system that has worked well for 300 years.

Oh yes, and the injection of politics in to the military, and the whole PC movement. All of this will push commanders to do nothing about problems, unless they come to the attention of the media, then they will nuke those involved.

Response by Sgt Aaron Kennedy, MS made Jun 21 at 2015 1:23 PM

Sgt Aaron Kennedy, MS — Sun, 21 Jun 2015 13:23:52 -0400

The article's author is trying to join many unrelated concepts together to form an argument towards a specific goal.

I have reserved judgement on the SGT Bergdahl case pending his Court Martial. I have weighed in on various arguments however, just as whether a General who is nominated for CSA is in a position of "conflict of interest."

As for the handling of Sexual Assault cases, that is a distraction to this particular case.

If we want to argue about this case, let's argue about this case. If we want to argue about the UCMJ and its oversight, let's argue about that. They are two separate issues, and one is a distraction to the other. Essentially Micro vs Macro.

But let's address her specific points of contention:

1) Do commanders have too much leeway when it comes to prosecution discretion?

I believe this is a valid concern. Basically it is a "Quis custodiet ipsos custodes?" issue. No one should ever had the ability to investigate themselves for wrongdoing. However, "outsourcing" it to a third party lends itself to political influence which is the one advantage the military justice has over the civilian system.

2) Why do non-lawyers make the decisions?

This is a disingenuous argument. Commanders make the decision, however they do so based on advise of lawyers within our ranks. To assume they are doing so in a vacuum, and to present it as such is misleading in an extreme way. When it boils down to it, there is a prosecutor who says "we believe we have enough evidence to can convict" or the opposite for each of these Courts Martial.

3) How can X impartially decide Y?

Again, this is a disingenuous argument. Judges, whether civilian or military all have known bias. We go through confirmation hearings regarding Federal Judges because of this. The next Supreme Court Justice will be so heavily scrutinized it won't even be funny.

That said, this argument does have some validity when looked at from the other side. We are placing the General into an Ethical Dilemma situation which we should not. I have no doubt that he will make the correct decision(s) legally, however that doesn't mean he should be placed into the position where his future career can be compromised based on ANY choice he makes during these CM proceedings.

4) Over-reliance on Commanders.

The UCMJ is established by Congress and Codified by Executive Order. It is written the way it is with the consent of Congress AND the Executive. If Congress wants it changed, they can change it. The "reliance" as the author puts it was a built in "feature" as opposed to a "bug" to use computer terminology.

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Now as for where I think the author is trying to lead us. Should the military justice system be "removed" and we only have a Justice System. The Constitution outlines the requirement. Should the be closer? Sure. Does the UCMJ require an additional revamp? Quite possibly. It is pushing 65 years old now (1950-1 iirc), with overhauls in more recent history, but the general format has been consistent for a VERY long time.

But if that is what she is suggesting. Actually suggest it. Don't try to highlight general examples about one thing, and specific examples about another for a disjointed opinion piece about why the UCMJ doesn't work, when it is in fact very effective & efficient for what it is designed for.

Response by Maj Mike Sciales made Jun 21 at 2015 1:43 PM

Maj Mike Sciales — Sun, 21 Jun 2015 13:43:40 -0400

First off, the author paints with too broad a brush, as if there were just a bunch of nutty Colonels and Generals running roughshod administering justice, hanging troops, ignoring the law and otherwise being bad. Nonsense and Baloney. I was a JAG for most of my career and every single General Office or Colonel that I had discussions with regarding legal matters paid extremely close attention to all the information submitted for review and listened to my opinion and generally tended to follow my legal recommendations. I've also had experience as an Area Defense Counsel where those same level commanders paid very close attention to what I've said and they've gone along with my analysis and recommendations over their own Staff Judge Advocate. This is healthy. GCMs and SpCMs are not supposed to be rubber stamps -- but weak commanders with shifty, weasel JAGs will get led to making bad decisions and that is what we hear about. The author also fails to understand the significance of military justice being a global, world-wide justice system. We'd had courts-martials everywhere the DoD is located - aboard ships, remote locations, war zones and on. The civilian justice system is too overwhelmed and there is simply no way for inexperienced person to understand the importance of the system. Politicians see one particular area and want to tear it all down - a system as old as the USA itself. Instead it'd be heaps smarter to roll with it and create a "Special Victims" unit and all personnel involved go to a special Military court in DC - regardless of where the offense occurred. You can train and create special prosecutors and investigators and you can monitor the results in "real time." But you don't close a system and then cobble together some 20 second fix. That isn't law, it's politics and the DoD doesn't need political fixes from a outfit that can't do it's job (Congress).

Response by Capt Private RallyPoint Member made Jun 21 at 2015 1:57 PM

Capt Private RallyPoint Member — Sun, 21 Jun 2015 13:57:31 -0400

If I was given an option of military justice versus civilian justice, if I was innocent I would choose the military. If guilty I would choose civilian.

Response by SSgt Private RallyPoint Member made Jun 21 at 2015 2:04 PM

SSgt Private RallyPoint Member — Sun, 21 Jun 2015 14:04:36 -0400

The fact that somebody who has no idea the gravity of walking off your post in war, can write an article like this and be taken seriously proves why UCMJ needs to be left alone.

Response by CW5 Private RallyPoint Member made Jun 21 at 2015 6:42 PM

CW5 Private RallyPoint Member — Sun, 21 Jun 2015 18:42:41 -0400

I think the author's argument is weak. This isn't the civilian world. It's the military. Poor SGT Bergdahl? I think not. He brought those five years in captivity on himself by deserting his post and going over the hill.

I'm sure I've been in and around the military for way too long, but I disagree with most of what the author had to say, particularly about Bergdahl. One could argue that it took courage for GEN Milley not to recuse himself, because he must know the political price that could be involved with that decision.

Response by LTC Bink Romanick made Jun 21 at 2015 6:59 PM

LTC Bink Romanick — Sun, 21 Jun 2015 18:59:43 -0400

I'm perplexed over the the military justice system over the past decade. I was disgusted with the Sinclair verdict and the relatively light punishment that he received.

The recent court martial of an Air Force officer which led to a guilty verdict which was overturned by the reviewing authority simply because "he is a good pilot " is beyond my understanding.

The Bergdahl prosecutionMay indeed fail because mental illness may be used in his defense or simply , how do you prove intent to desert? It's a show trial that the army doesn't need. Are politics behind this?

Time will tell.

Response by SSG Stephen Arnold made Jun 21 at 2015 7:49 PM

SSG Stephen Arnold — Sun, 21 Jun 2015 19:49:26 -0400

This author reveals her ignorance. Bergdahl is not being tried because of the alleged consequence of his desertion. He is being tried BECAUSE he deserted.

Anything that happened subsequent to leaving his post is HIS fault, not the Army's. IF he was held prisoner, then HE is responsible for it because he CHOSE to go to the other side. How they treated him is irrelevant to his prosecution.

The only issue to be determined is whether he actually deserted. The available evidence suggests that he did. If so, then he should suffer consequences HERE, regardless of whether the Taliban imposed their own.

Response by PO1 John Miller made Jun 22 at 2015 3:42 AM

PO1 John Miller — Mon, 22 Jun 2015 03:42:06 -0400

You would THINK that a person who is a 20 year veteran of the Air Force, a lawyer, and an "expert in military law" would know WTF she is talking about. Apparently that is not the case!

I of course am referring to the author of the article Rachel Vanlandingham.

Response by SGT William Howell made Jun 22 at 2015 9:13 AM

SGT William Howell — Mon, 22 Jun 2015 09:13:56 -0400

What a lawyer! That was not a good statement!

Just because you were a POW for 5 years does not mean you get a pass on desertion.

Response by CW5 Private RallyPoint Member made Jun 22 at 2015 12:47 PM

CW5 Private RallyPoint Member — Mon, 22 Jun 2015 12:47:03 -0400

"It is deeply disturbing that the next Army chief of staff feels there's absolutely nothing improper with him retaining sole and full prosecutorial power in Sgt. Bergdahl's case, despite the case being hopelessly entangled in political controversies."

That said, GEN Milley is not the judge, jury, prosecutor or executioner. He just will decide how this moves forward. There are more than political concerns here. There is also good order and discipline which is what the UCMJ is all about. The General most likely has the most experience in that arena than anyone else right now.