Bergdahl case spotlights broken military justice
Sgt. Bowe Bergdahl’s courtmartial 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 today to desertion and misbehavior before the enemy, but because this system protects our sons and daughters who serve our country in uniform. We should know whether it’s broken for their sake.
Bergdahl’s case demonstrates that military prosecutorial decision-making is hugely vulnerable to inappropriate influences. That’s because high-ranking commanders decide how to dispose of allegations of misconduct in the military. They are supposed to decide whether to prosecute based on the facts at hand, free from unfair factors such as worry about their own careers. Reality is different.
Army Gen. Robert Abrams 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. Does anyone really think McCain’s comments had no influence on Abrams’ decision?
A system that gives prosecutorial discretion to non-lawyer commanders whose careers depend on remaining in good congressional graces is by definition not a fair one. A better system would allow trained lawyers immunized from career concerns to make these decisions.
The Bergdahl stain extends to the White House. Candidate Donald Trump publicly called Bergdahl a traitor — or insinuated that he should be shot as a traitor or pushed out of an airplane for being a traitor — more than 45 times. That left an indelible mark on servicemembers.
These are soldiers trained to follow the commander in chief ’s bidding. And they are the same soldiers who would have sat on Bergdahl’s jury. It’s no wonder Bergdahl decided to avoid a trial.
Before 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 given that the Army negligently enlisted Bergdahl after the Coast Guard had discharged him as unfit for military service). Bergdahl’s vainglorious act had tragic consequences — 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 five years.
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 a sense of justice for the other victims. Even if you don’t think Bergdahl deserves a fair military justice system, the rest of those in uniform surely do.
Rachel E. VanLandingham, a retired Air Force lieutenant colonel, teaches at Southwestern Law School and is vice president of the National Institute of Military Justice.