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.