Sergeant Bergdahl has filed another writ-appeal petition at CAAF:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v.  Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Marital Convening Authority and United States, Appellees.  CCA 20150463.

Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.

Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.

The issue presented is:

Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?

The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.

Different levels of command have different degrees of authority in the military justice system, and superior commanders can withhold their subordinates’ authority in particular cases, particular types of cases, or all cases. In the Bergdahl case, the Secretary of the Army gave only General Milley (the Commanding General of U.S. Forces Command) the authority to dispose of the case, and the Secretary prohibited General Milley from further delegating that authority. General Milley then forwarded the case to Lieutenant Colonel Burke (the Commanding Officer of the Special Troops Battalion), but specifically withheld the authority to dispose of the case from Lieutenant Colonel Burke. Lieutenant Colonel Burke then preferred the charges and ordered an Article 32 preliminary hearing.

Lieutenant Colonel Burke is a special court-martial convening authority. Under Rule for Courts-Martial 404, Lieutenant Colonel Burke can normally do any of five things with charges:

  • Dismiss the charges (R.C.M. 404(a))
  • Forward the charges to a subordinate for disposition (R.C.M. 404(b))
  • Forward the charges to a superior for disposition (R.C.M. 404(c))
  • Refer charges to a summary or special court-martial (R.C.M. 404(d))
  • Direct an Article 32 preliminary hearing (R.C.M. 404(e) as amended by E.O. 13696)

But in the Bergdahl case, Lieutenant Colonel Burke’s authority was limited by General Milley. Specifically, when General Milley forwarded the case to Lieutenant Colonel Burke, General Milley wrote:

I am withholding ultimate disposition authority in accordance with Rule for Courts-Martial 306. I expect you to give an honest and independent recommendation as to disposition, or to take appropriate action within the limits of this withholding.

Pet. at Exhibit 4.

Sergeant Bergdahl’s writ-appeal petition asserts that General Milley’s forwarding for a recommendation while withholding ultimate disposition authority violates both the Rules for Courts-Martial and the Secretary of the Army’s prohibition on further delegation:

The last sentence of R.C.M. 306(a) states: “A superior commander may not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld.” The text is dispositive of the Issue Presented. It shows that the authority that is “withheld” under R.C.M. 306(a) relates to the case, as opposed to the particular powers a convening authority possesses with respect to cases that have not  been withheld from him or her, and that the subordinate’s discretion cannot be cabined.

Pet. at 7 (emphased in original). The petition ultimately seeks disqualification of Lieutenant Colonel Burke as special court-martial convening authority in the case (functionally this would likely force General Milley to direct any Article 32 preliminary hearing in the case).

I don’t find the petition’s argument particularly persuasive, for two reasons. First, R.C.M. 306 speaks very broadly, addressing all allegations of misconduct (not just those that end up on a charge sheet). For instance, R.C.M. 306(a) states:

(a) Who may dispose of offenses. Each commander has discretion to dispose of offenses by members of that command. Ordinarily the immediate commander of a person accused or suspected of committing an offense triable by court-martial initially determines how to dispose of that offense. A superior commander may withhold the authority to dispose of offenses in individual cases, types of cases, or generally. A superior commander may not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld.

(emphasis added). Further, R.C.M. 306(c) discusses numerous ways of addressing offenses, including no action (R.C.M. 306(c)(1)), administrative action (R.C.M. 306(c)(2), and – critically – “disposition of charges”:

Disposition of charges. Charges may be disposed of in accordance with R.C.M. 401.

R.C.M. 306(c)(4). Considering this language, the term dispose of offenses takes on a special meaning. It is not an all-or-nothing proposition, but rather it implies a final disposition of preferred charges. Under this interpretation, General Milley forwarded the case to Lieutenant Colonel Burke for action but not final disposition. Lieutenant Colonel Burke’s roles and responsibility in the case are limited, but not non-existent.

Second, R.C.M. 405(c) (both the current and prior versions) specifically allows any court-martial convening authority to order an Article 32 preliminary hearing:

(c) Who may direct a preliminary hearing. Unless prohibited by regulations of the Secretary concerned, a preliminary hearing may be directed under this rule by any court-martial convening authority. That authority may also give procedural instructions not inconsistent with these rules.

(emphasis added). By the plain language of this rule, a convening authority need not have the authority to dispose of a case in order to have the authority to order a preliminary hearing in the case.

Another twist is that because Lieutenant Colonel Burke preferred the charges against Sergeant Bergdahl, he may not refer the charges to trial by court-martial. See R.C.M. 601(c). See also Pet. at 11 n.8. That the Rules for Courts-Martial specifically prohibit Lieutenant Colonel Burke from referring the charges (as an accuser) but not from ordering the preliminary hearing (for any reason) implies that he retains the authority to order the hearing.

CAAF denied Sergeant Bergdahl’s last petition without prejudice to assert the issue during ordinary appellate review (if, of course, he is convicted of any offense). I suspect the court will do the same with this petition.

22 Responses to “Sergeant Bergdahl seeks extraordinary relief (again)”

  1. k fischer says:

     I thought you meant this article:

  2. TC says:

    I’m curious what the defense hopes to gain from this writ.  Even if the Lt. Col. is disqualified, how does that benefit the defense? What possible different outcome will result if General Milley directs the 32?

  3. k fischer says:

    6 more months of pay 6 more months of preparation 6 more months of The government having the piss and vinegar taken out of them Maybe you get a new judge maybe you get a new staff judge advocate 6 more months to can change the tone of the trial Is what you get out of filing such a writ

  4. J.M. says:

    Wow. Looks like he gets captured every time he leaves base.

  5. (Former) ArmyTC says:

    J.M., Thanks for that. I’ll be using that joke all day.

  6. stewie says:

    Is this extra-extraordinary relief?

    Concur with kf, defense hopes to gain time, and things almost never get better for the government with the additional passage of time.

  7. Broken System says:

    I hear the bus being started for the unlucky TC that will get run over when this is all said and done. Anyone remember the Sinclair debacle?

  8. J.M. says:

    @ArmyTC: No problem. Another good one is to ask when the Rose Garden press conference will be held to announce his latest release. 

  9. k fischer says:

    In addition to making the Government jump through every stinking hoop on a loser case to raise every appellate issue possible, I find that when you go back to the Government with your next client on a stupid case, the deal gets a lot sweeter or maybe the fight is given up a little easier.
    I don’t know how many cases Eugene takes, but there is some currency in having a scorched earth reputation as a civilian defense counsel in that every trial counsel grimaces when you enter an appearance because they know they are going to have to go through a bunch of crap to get a conviction.  Suddenly, that Chapter 10 starts looking pretty appealing. 
    But, I always play nice to first timers, until they do something I perceive as unreasonable.  At that point, its time not to be nice.
    For instance, a certain local sex crimes unit detective has a lot of explaining to do regarding a murder of a local girl who falsely accused my client of raping her in December.  I think if they ran through DNIS the DNA from the semen found on her vaginal swab that excluded my client in March when the DA no-billed the charges, then they could have gotten a match with the guy who actually raped her, then murdered her in July 2015.  I’m not going to let up until CPD answers my question.  Here is the story.  Trigger warning:  This story involves a false allegation, rape, and murder.

  10. SFC V says:

    k fischer,
    Or you poke the Grizzly Bear enough times that it finally gets motivated enough to chase you down and eat you.  Poking the grizzly bear doesn’t always guarantee good results, it can often have the opposite effect. 

  11. Pablo Sanchez says:

    Desertion is a very specific charge under U.S. military law. And there are crucial differences between civilian and military criminal justice that make Bergdahl’s conviction, or even a trial, unlikely. // Pablo @

  12. k fischer says:

    SFC V,
    1 Samuel 17:36  “Your servant has killed both the lion and the bear; and this uncircumcised Philistine will be like one of them, since he has taunted the armies of the living God.”
    I’m answering TC’s question about what benefit having the LTC disqualified would be gained by the defense.  I’m not talking about filing frivolous motions, but if the Government has screwed something up that can be fixed, then it is perfectly fine to make them fix it even though it creates a lot of work for everyone and you wind up at the same end state.   Make them work. 
    I have found that if you start off nice with TC’s who are reasonable, then you can reach a fair result for your client.  But, when you deal with one who is not reasonable, then you need to take the case to trial and make them work for whatever kind of stupid they are stuck on.  They are kind of like the Mujh.  They only recognize strength, so you have to fight them and win.  Then, they back down.  Or at the very least, they see your skill set and maybe they think twice about the deal you bring them with the next client.
    So, how exactly is a CoJ or SJA going to chase me down and eat me, Hero?  I’d be really interested in hearing how that will happen.  Because it didn’t work so well for the freaktards that screwed with Carolyn Martin, now did it?  Phillistines.

  13. Michael A says:

    I’m not sure I understand petitioner’s argument.  If the remedy petitioner ultimately seeks is disqualification of LTC Burke as SPCMCA, isn’t he already disqualified under RCM 504(c)(1) becuase he preferred charges:
    (c) Disqualification.
    (1) Accuser. An accuser may not convene a general or special court-martial for the trial of the person accused. 

  14. Saul says:

    KF – agreed on most of what you wrote. But in this case, we haven’t heard of the government overreaching or being unreasonable (at least I haven’t).

    The petitions are educational even when their arguments aren’t persuasive. There’s a lot going on here that the novice TC and even DC haven’t dealt with. When this is all finished, I’d love to read this book or watch the movie.

  15. SFC V says:

    Perhaps you missed the metaphor.  When you make the government do a lot of work they often get motivated to try your client, convict him, and punish him.  Just because you don’t like the deal the government is willing to accept doesn’t mean they are being unreasonable.  The risk is that you start out with a reasonable prosecutor and you make them do so much work that they aren’t willing to offer you anything.  After you have put a certain amount of time and effort into a case it doesn’t take much additional time and effort to go to trial. 

  16. k fischer says:

    I agree.  I don’t think the Government is overreaching with a GCM.  But, maybe EF is trying to leverage a Chapter 10.  That wouldn’t be beyond the left limit for a reasonable result IMO.  Nor is a DD unreasonable, either.
    SFC V,
    You should talk to some of the prosecutors who should have taken the deal I offered initially.  But, your right, the more you make a reasonable prosecutor work, the more entrenched he becomes and the deal gets less sweet.  But, I’m not talking about a reasonable prosecutor.  I’m talking about a prosecutor who offers me an 18 month deal when the most he can get by the way he charged the case is 18 months.  Screw him.  I’m taking it to trial, and I am not going to tell him his screw up because he might fix the charge sheet to make the maximum punishment 5 years like he thought it was.  If he gave me 12 months, like I wanted and ended up getting after fighting the case, then I would have taken it and saved him a ton of work.  I didn’t do anything wrong, but I fought it out.  Or the Chapter 10 I offered, which was denied and wound up being a full acquittal.  Or the Chapter 10 with a suspended OTH for 180 days I offered and was denied, which was a full acquittal.  Or the public intoxication plea I offered to a SAUSA in Federal court on a DUI where my guy blew a .25.  Full acquittal in about a half hour.  I’ve been fortunate that I have either met or beat the deal on many cases that the Government was offering.  Usually, it’s my client backing me into a corner by refusing to plea, but it has turned out okay.  I recognize that there is always that first time, though.
    How about that Bragg fragging case where the Government turned down an OTP to Murder because they wanted to go capital, that wound up being a full acquittal.  Good job, Government!
    And talk to Zach Spilman about a wonderful contested trial that resulted in an acquittal because the Government did not give him his offer.  I

  17. Brian lc says:

    The TC that gives the defense a better deal because the CDC makes his life hard gets what he/she has coming.  As my chief of justice drilled into me, deals always get worse with time, and give detailed counsel the same deal you would give any CDC. 

  18. Phil Cave says:

    1. In 2000 I realized that “litigate to mitigate,” as I called it then, was the way to go.  As KF points out, if you beat the deal it’s still a win.  Actually it was my first exposure then to AF cases that taught me that.  They thought they were being magnanimous offering five years for a case that was worth a BCD sentence.
    2. @Brian lc.  I agree that’s often the threat from TC.  But it doesn’t always work out that way.  As I ask clients, what’s your tolerance for risk and what’s your tolerance for pain.  Generally they are willing to accept the risks of both.  I’ve met many a TC who made that threat and paid for it.  If a TC wants to be reasonable as opposed to deny, deny, deny, and fight discovery– fine.  That case is going to go long and hard as Kyle suggests.  TC sometimes mistake being pragmatic and reasonable as not being zealous–wrong.  Just as DC can at times be unreasonable.  Check out the ABA Guidelines for Litigation Conduct.  And by the way, I don’t include you in the list of jerks.  :-)

  19. stewie says:

    I suppose it depends on why the CDC is making your life hard.  Is it because you aren’t being smart/reasonable, and then you later realize, oops, the CDC is right? Then the smart thing to do may very well to cut your losses. And in the future, if the CDC was right a few times, it might behoove you to listen the next time.
    Is the CDC just an idiot/bad lawyer who is making your life hard because they don’t know what they are doing (or think making things hard is the only way to operate)? (And yes those exist, I can think of one in particular…unfortunately).  Then yeah you bear down, embrace the suck, and go to work.  And remember the next time as well.

  20. Weirick says:

    Some bears need to be poked, kicked, and put in a rear naked choke. – The Weirick

  21. Charlie Gittins says:

    I have been a writ-miester in my past life.  Nothing like having a case stayed on the Friday afternoon before a GCM starts . . .  US v. Schmidt, 60 M.J. 1.  Or, how about we open up that Article 32 hearing that the SPCMCA ordered fully closed . . .  McKinney v. Jarvis (ABC, Inc. v. ????).  We filed one in the Bozecevich case . . .  we didn’t get any love, but the Government went into panic overdrive to respond.  These things throw the G off their game.  They delay the case.  They allow further time for the defense to prepare and interview.  In short, anything that disrupts the Government that is part of the defense plan is good for the defense, bad for the Government and probably inures to the benefit of the client.  I know I will probably lose, but look at the Schmidt case  . . .  a 26 or so page AFCCA denial followed by a reversal in a two page opinion from CAAF.  In McKinney, the CAAF ruled FROM THE BENCH, opinion to follow.  Both benefitted the client and in one case the CM went away and in the other SMA McKinney was convicted od a throw away obstruction charge with a punishment that preserved his retirement in the E-10 pay-grade.

  22. Brian lc says:

    PC, don’t disagree with you.  An unreasonable TC also gets what they have coming.