CAAF’s daily journal for Friday has the following entry:

No. 15-0616/AR. Robert B. Bergdahl, Appellant v. Mark A. Mi[l]ley, General U.S. Army, in his official capacity as Commanding General, U.S. Armed Forces Command and General Court-Martial Convening Authority, and United States, Appellees. CCA 20150383.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of mandamus was filed under Rule 27(b) on this date.

A copy of the petition is available here. Sergeant Bergdahl seeks to disqualify General Milley as the convening authority under the theory that he is an accuser in the case.

“An accuser is an individual: (1) ‘who signs and swears to charges’; (2) ‘who directs that charges nominally be signed and sworn to by another [type two accuser]’; or (3) ‘who has an interest other than an official interest in the prosecution of the accused [type three accuser].'” United States v. Ashby, 68 M.J. 108, 129 (C.A.A.F. 2009) (quoting Article 1(9), UCMJ) (marks in original). “An accuser may not convene a general or special court-martial, nor may he refer charges to a court-martial.” Id.

Bergdahl asserts that General Milley is a type three accuser (that he has an interest other than an official interest in the prosecution of the accused) because General Milley was recently nominated for the position of Chief of Staff of the Army (the most senior officer post in the Army). The writ-appeal petition asserts that:

General Milley’s service as GCMCA for appellant’s case while his nomination is awaiting SASC consideration and a vote by the full Senate, and in light of the extraordinary interest that body has expressed in matters relating to appellant, deprives him of the right to discretionary GCMCA decision-making that is (and appears to be) based solely on the facts and circumstances of the case, without regard to the personal interest of that official in being confirmed for higher office.

Pet. at 8 (internal citation omitted). The petition concludes by asserting that “A new GCMCA must be designated who does not have a SASC confirmation hanging over his or her head. Failing to grant the relief requested at this time will not foster public confidence in the administration of justice.” Pet. at 14.

I think the greater danger to public confidence lies in the possibility that CAAF will grant the requested relief. The petition identifies no actions by General Milley that make him an accuser; it is his nomination alone that is seen as disqualifying. Were CAAF to agree that General Milley’s mere nomination to the senior position in the Army gives him an interest other than an official interest in the prosecution of Sergeant Bergdahl, it’s hard to identify a limiting principle that would prevent a similar argument from disqualifying a wide range of convening authorities. Moreover, I think such a holding would imply that senior officers are incapable of implementing the UCMJ fairly and impartially – a disturbing proposition.

13 Responses to “Bergdahl seeks extraordinary relief”

  1. Saul says:

    I think the greater danger to public confidence lies in the possibility that CAAF will grant the requested relief. The petition identifies no actions by General Milley that make him an accuser; it is his nomination alone that is seen as disqualifying. Were CAAF to agree that General Milley’s mere nomination to the senior position in the Army gives him an interest other than an official interest in the prosecution of Sergeant Bergdahl, it’s hard to identify a limiting principle that would prevent a similar argument from disqualifying a wide range of convening authorities. Moreover, I think such a holding would imply that senior officers are incapable of implementing the UCMJ fairly and impartially – a disturbing proposition.

     
    Zach, I think you nailed it.  With all of the attention given to prosecuting sexual assault cases, and the presumption that every GCMCA hopes to eventually go before the Senate in a confirmation hearing; if CAAF grants relief, could any sex assault case be prosecuted under the UCMJ? 

  2. Monday morning QB says:

    What Saul said.  This argument plays into the hands of the folks who want to get rid of our convening authority model and remove commanders from having anything to do with sexual assault cases.  The irony in the SA context is we actually now have CAs referring more cases to trial than state DAs or federal prosecutors would. But the folks who are producing that narrative are ignorant of this truth.   

  3. Babu says:

    There are legal fictions we maintain in order to keep the system going.  But as a practical matter, do you really believe that senior officers completely disregard self-interest, and are wholly virtuous when considering unpopular decisions?  That they would freely make a decision that could harm their career, without any consideration of that fact?
    I tend to think that officers are human beings, and balance self-interest with other competing interests, the same as anyone else.  And the higher one climbs through the ranks, the more investment of blood, sweat and tears into a career, and the greater the interest in not compromising what has been accomplished.
    Not to mention that the only empirical research that has been done indicates that officers lie and cheat the same as their civilian brethren.  And the consistent drumbeat of COs being relieved for cause and other senior officer misconduct would further bear out that officers are not superhuman. 
    My point is not that this ex writ is meritorious, but that the idea of CAs being wholly impartial and virtuous is not consistent with reality.  It would be consistent with justice if CAAF started demanding something more from CAs than SJA-prepared affidavits touting complete independence and lack of self-interest.   
    That said, I hope Bergdahl gets referred capital, and they revive the firing squad.    

  4. k fischer says:

    Don’t call Saul; Dial Kyle…
     
    I don’t really see the Type III accuser being raised here, unless the GCMCA stated verbally or in writing that he felt compelled to refer the case, so he could get confirmed.  Seems like politically, he would have allies on each side of the aisle no matter what the decision was. 
     
    However, I do see how it could apply to any sexual assault case that gets referred despite the 32 Investigating Officer recommending dismissal.  I filed a motion in an Article 120 case recently where this occurred seeking to disqualify the Convening Authority, in conjunction with a motion to dismiss for UCI.  Both motions were denied, but with the right judge and the right convening authority, you never know. 
     
    And, I don’t think that just because a Convening Authority could be disqualified, then you can never convene another Court-martial again.  I think in those strong cases, pressure from Congress had nothing to do with the decision to refer.  However, in a weak, weak, weak Government case like I had last week, I think the only explanation why it got referred was because of the pressure placed on Convening Authorities by Congress.
     
     

  5. stewie says:

    Well, let’s not get rid of courts-martial then kf, because my near-future career plans kinda bank on them occurring regularly for the foreseeable future!

  6. k fischer says:

    Stewie,
     
    I’m just waiting for a GS-15 civilian defense attorney slot to open up at Benning, so I can become a permanent thorn in the SJA office’s side.
     
    Are you thinking about retiring from the Armed services and hanging a shingle defending Soldiers at courts-martial?  You might want to think about taking some family law and personal injury CLE’s in the meantime.

  7. stewie says:

    When retirement comes, yes I will hang a shingle.  I’ve got enough socked away to weather a couple of lean years as I get into things.  But plans are made to change.

  8. Government Created Problem says:

    At first blush, I thought this petition for a writ was baseless… then I remembered Congress’ treatment of General Helms and General Franklin.  This is a problem Congress and senior DoD leaders created for themselves.  If they’d not publicly bashed convening authorities for exercising independent judgment, then perhaps we wouldn’t be where we are now, and perhaps convening authorities would still be afforded the benefit of the doubt.  As it is, it’s a farce to pretend that facing Senate confirmation for the highest position in the Army – this guy’s crowing achievement –  is not a factor weighing on his mind.  The Congress and senior DoD leaders have done all they possibly could to make their opinions a matter of concern for him and for all convening authorities.  He would be a fool to not be concerned.  The foreseeable and natural consequences of Congress’ and senior DoD leaders’ actions is that we all now have a little less trust that commanders feel free to be truly independent in the administration of justice.  That’s a government created problem.

  9. k fischer says:

    GCP,
     
    I’ve got some interrogatories I’d like for you to read bc you just called a two star a fool.  He specifically and directly answered that the treatment of Helms and Franklin had no impact on his decision to refer after the JAG IO recommended dismissal in the most ridiculous of ridiculous courts-martial.  Of course, personally I think he’s a liar, but I’ll take Fools for $1,000, Alex.  If anyone faces a similar situation, then I’ve got a great motion to share to disqualify the convening authority.
     
     Email me, I’m easy to find on the interwebs…..

  10. stewie says:

    I’m a little confused…half this blog, a decidedly defense-friendly blog, wanted/wants to throw the book at Bergdahl, yet the decision to go to trial means it was made by a fool who only did so because of Congress?

  11. k fischer says:

    Stewie,
     
    I don’t think the decision to go to trial is pushed by Congress because certainly the appearance would be that if it did not go to trial, then the President had a hand in it. I think the decision to refer shows courage in that the facts that will be disclosed should fly in the face of the Administrations portrayal of this NCO.  So, I think a motion to disqualify the Convening Authority in THIS case is weak (with all due respect to Mr. Fidell whom I hold in the highest regard) because the pressure from one side of Congress to prosecute is balanced by the perception of the Executive Branch to not prosecute.
     
     
    Sexual Assault on the other hand is fertile ground for plowing through the rocky ground with a disqualification motion.  I’ve got one already drafted, filed, and I received some relief in which an extremely Government friendly judge ordered the Government to have the GCMCA answer my interrogatories.  I think that GCP’s fool reference pertained to sexual assault cases, not Bergdahl’s case.  If not, then mine did.

  12. Saul says:

    because the pressure from one side of Congress to prosecute is balanced by the perception of the Executive Branch to not prosecute.

    the thought had crossed my mind before, but I can’t help but be somewhat impressed that the President nominated GEN Milley after GEN Milley seemingly is acting contrary to what the President seems to prefer.  Maybe, just maybe, the POTUS respects people who have the courage to do what he believes is right despite the politics involved?  Congress should do the same.

  13. CPT AGJ says:

    I don’t imagine that many members of Congress will be super vocal in pushing the Bergdahl case. Keep in mind that wide swaths of Congress spoke out loudly against POTUS swapping GTMO detainees for Bergdahl.  If they were to take the position that prosecuting Bergdahl is indispensable to the military’s readiness, beltway logic says they would be ceding some amount of legitimacy to POTUS’ decision to trade.  That may be strained logic, but that’s what makes it “beltway logic,” and not “logic.”