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.