The court martial of Army Master Sgt Omar Velez Pagan began in Fayetteville, NC reprots the Fayetteville Observer here.  The Master Sgt. is accused of murderimg his mistress while assigned as a geo-bachelor in Panama.

The WaPo editorial board weighs in on the Sgt. Bowe Bergdahl case, here. From the editorial:

We agree with those who say that Mr. Bergdahl’s conduct in leaving his unit was wrong, that it put lives at risk and that, despite his psychological issues, he should be accountable. At the same time, the Army may have contributed to this debacle by enlisting a soldier it shouldn’t have. And even without formal accountability, he has already suffered horribly for his actions.

In our view, the military justice system will pass this test to the extent it tempers judgment with due consideration of everything the case reveals about human frailty — and with mercy.

I am sure this will ignite comments, so please be mindful of the comments policy.

51 Responses to “Military Justice News for March 24, 2016”

  1. Bill Cassara says:

    The Pagan panel consists of five members, 3 of which are required to convict, four to sentence for more than ten years.  Name me one other system where someone could face LWOP based on the votes of four people.  I have no real knowledge of the facts of the case, but that fact alone should cause anyone concerned with justice grave concern.

  2. Angelfan30 says:

    Aren’t four required to convict?

  3. stewie says:

    I don’t disagree with you at all, having said that, boy if that case had any more direct and circumstantial evidence it would be on CSI-Panama.

  4. Christian Deichert says:

    Only a five member panel?  Wow.  How many members were appointed to sit before voir dire started?  Must have been a hell of a challenge session.

  5. Christian Deichert says:

    And I agree with Angelfan, four would be required to convict (3/5 < 2/3) as well as to impose a sentence greater than 10 years.  Not that it looks that much better to an outside observer.
     
    The proposed changes to Article 29 would bump the minimum to eight.  Anyone have any intel on the current status of the Military Justice Act of 2016? I’m not seeing anything on hearings in either the HASC or SASC.

  6. Bill Cassara says:

    Sorry, math was never my strong suit.  An FSU education only goes so far.  But yeah, the optics stink.

  7. Concerned Defender says:

    While I can be critical of the military in a number of ways, suggesting the military is at fault for letting Bergdahl voluntarily enlist during a time of war is both desperate and silly.  Imagine the floodgates…  

  8. Dew_Process says:

    @ Concerned – were you aware that he had a prior ELS due to mental health issues?  The Army had to have known about that or they for sure would have also charged him with fraudulent enlistment.

  9. Lone Wolf says:

    I disagree with CD. Bergdahl was separated from the Coast Guard for mental disorders. The Coast Guard! If that isn’t a red flag what is? 

  10. Concerned Defender says:

    I’m fully aware that Bergdahl had a Coast Guard separation for some behavioral issues.  I believe the military granted him a waiver – note they didn’t draft him.  He applied and sought a waiver, presumably. Seems like some folks need to re-look the definitions of proximate cause and causation in general.  If the Army let’s a person in in spite of my conviction for drug use, or robbery, or whatever… that gives a person a blank check for further misconduct?  If he passes his mental health eval and the 2 prong test – 1) did he know the nature of going AWOL, leaving his post without permission, etc. was a crime and/or dangerous in a combat zone and 2) does he understand the nature of his charges and the trial… then he stands trial. 
    I would bet the answer is that he did in fact know and appreciate what an AWOL was and the fact he was in a combat zone.  And I’m sure he knows he’s facing trial and the nature of that.  End of story.  
    Lots of Soldiers have minor behavioral issues… the bar is much much higher than that.  As you either should know or now know. 
     
     

  11. Dew_Process says:

    @ Concerned – you are assuming that he went AWOL – his version is and has been that he was going from his FOB to his support base to make a complaint about his chain-of-command. While he may not have had permission to do that, its not necessarily AWOL and I guess that will be up to the fact-finder.  And as I recall (but haven’t re-checked), the AR 15-6 Investigation into this indicated that he should have not been allowed to enlist.

  12. Joseph Wilkinson says:

    Doesn’t matter…you leave your unit, no matter how “noble” your goal, and you’ve gone AWOL.  See U.S. v. Rockwood — Rockwood claimed he was just going off to inspect a prison so he could find out about human rights violations and report them to his chain of command.  It didn’t matter a bit.  He was convicted under Article 86 (amongst others, though in this case it was “failure to report”).
     
    Likewise, you leave your unit in a combat zone, and no matter how noble your goal, it’s desertion with intent to shirk.  (We discussed U.S. v. Kim in an earlier thread…the guy said he was going to visit his sick mother; the government said he was going to visit another Soldier’s wife; it absolutely did not matter, as long as he knew his unit was doing “important service” (just a train-up for a deployment), desertion is what it was.
     
    Bergdahl’s statements quoted in the Rolling Stone article make his later explanations not ring true in any case…they are intensely disloyal to the United States as well as the Army; and besides, if he was travelling through “Indian country” to report to another FOB, you’d expect him to bring his weapon along.  So it’s not just “assuming” but looking at the evidence.  I hope to have time this weekend to read through the Article 32 testimony and see what else the evidence says.  However, I give greater weight to what someone was saying and doing at the time.

  13. Concerned Defender says:

    To refresh our memories/information, Bergdahl “washed out” of the Coast Guard boot camp after a month with an “uncharacterized discharge.”  Hardly an indictment of his mental capabilities, as far as I can tell.  Just a wash out.  I’d like actual proof of the allegation he had a mental problem and wasn’t just a washout.  
    As for the Rolling Stone article cited above… here’s a pertinent excerpt:
    “The future is too good to waste on lies,” Bowe wrote. “And life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong. I have seen their ideas and I am ashamed to even be american. The horror of the self-righteous arrogance that they thrive in. It is all revolting.”
    The e-mail went on to list a series of complaints: Three good sergeants, Bowe said, had been forced to move to another company, and “one of the biggest shit bags is being put in charge of the team.” His battalion commander was a “conceited old fool.” The military system itself was broken: “In the US army you are cut down for being honest… but if you are a conceited brown nosing shit bag you will be allowed to do what ever you want, and you will be handed your higher rank… The system is wrong. I am ashamed to be an american. And the title of US soldier is just the lie of fools.” The soldiers he actually admired were planning on leaving: “The US army is the biggest joke the world has to laugh at. It is the army of liars, backstabbers, fools, and bullies. The few good SGTs are getting out as soon as they can, and they are telling us privates to do the same.”
    In the second-to-last paragraph of the e-mail, Bowe wrote about his broader disgust with America’s approach to the war – an effort, on the ground, that seemed to represent the exact opposite of the kind of concerted campaign to win the “hearts and minds” of average Afghans envisioned by counterinsurgency strategists. “I am sorry for everything here,” Bowe told his parents. “These people need help, yet what they get is the most conceited country in the world telling them that they are nothing and that they are stupid, that they have no idea how to live.” He then referred to what his parents believe may have been a formative, possibly traumatic event: seeing an Afghan child run over by an MRAP. “We don’t even care when we hear each other talk about running their children down in the dirt streets with our armored trucks… We make fun of them in front of their faces, and laugh at them for not understanding we are insulting them.”
    Bowe concluded his e-mail with what, in another context, might read as a suicide note. “I am sorry for everything,” he wrote. “The horror that is america is disgusting.” Then he signed off with a final message to his mother and father. “There are a few more boxes coming to you guys,” he said, referring to his uniform and books, which he had already packed up and shipped off. “Feel free to open them, and use them.”…Bowe Bergdahl had a different response. He decided to walk away.
    In the early-morning hours of June 30th, according to soldiers in the unit, Bowe approached his team leader not long after he got off guard duty and asked his superior a simple question: If I were to leave the base, would it cause problems if I took my sensitive equipment?
    Yes, his team leader responded – if you took your rifle and night-vision goggles, that would cause problems.
    Bowe returned to his barracks, a roughly built bunker of plywood and sandbags. He gathered up water, a knife, his digital camera and his diary. Then he slipped off the outpost….”
    In my view:  Confused and cowardly, yes.  Unpatriotic.  Yes.  Criminal, yes.  AWOL and desertion, yes.   Excusable misconduct or the fault of the military, no way.  

  14. Advocaat says:

    At least Bergdahl’s defense team gets the benefit of having a terrible argument aired out in public thanks to the Post.  “Your Honor, the Army contributed to this debacle” in any form is a great way to earn extra confinement.  Over the past 30 years I’ve worked extensively with members (officer and enlisted) from all five branches of the armed forces, and in my experience the overall quality of personnel in the Coast Guard far exceeds those of the other services.  Absent additional information, the fact this accused couldn’t make the cut at Cape May is hardly grounds to blame the Army for taking him.

  15. Tami a/k/a Princess Leia says:

    It would take 4 out of 5 to convict and sentence Bergdahl, regardless of sentence.
     
    I haven’t really paid that much attention to the Bergdahl case.  What I have paid attention to, my own person opinion is that he went AWOL.  Even accepting as true his purpose to complain about his superiors, there was no need to leave his FOB to do so.  What’s REALLY interesting, based on these recent comments, is whether his reason provides enough extenuating and mitigating circumstances to justify a lenient punishment.  Sounds like he make an argument that his trip to the other FOB was in reality a suicide mission.
     
    Since the government has been able to malign him publicly, I think it’s only fair he should get to present his side of the story in the “court of public opinion.” Kind of brilliant really.  The government can get his public statements into evidence if it wants to, but if the government does that, then he gets to present his side without having to testify at trial.  But he seriously needs to tone it down–calling his BC a conceited old fool is disrespectful.
     
    As for his feelings on what how we performed in Afghanistan, and what we did, anyone who served there can relate to his feelings.  For those who haven’t served in Afghanistan, I highly recommend reading the book Whiskey Tango Foxtrot.  I haven’t seen the movie yet, so I can’t comment how closely it tracks the book, but the book itself is an entertaining and enlightening read.

  16. Concerned Defender says:

    Since the government has been able to malign him publicly, I think it’s only fair he should get to present his side of the story in the “court of public opinion.” Kind of brilliant really.  The government can get his public statements into evidence if it wants to, but if the government does that, then he gets to present his side without having to testify at trial.  But he seriously needs to tone it down–calling his BC a conceited old fool is disrespectful.

    It would be brilliant, but for the fact that he’s a liar and been apparently coached.   His statements now are materially different than his prior statements in emails and apparently in the investigation.  I’d be worried about a Mendacity instruction when he gets on the stand to give yet another version…  If I were a TC I’d have all those statements and emails ready to impeach… Bergdahl’s biggest problem are the facts and the law, which any honest broker would have to look at and agree the broke the law on both counts.  Sure, definitely there’s some mitigation at sentencing.  Maybe he should get some credit for being a POW. Does an accused who robs a bank and then gets injured as a direct and forseeable result of his own criminality get credit for his injury?  And  let’s balance that against the aggravation of the forseeable result of becoming a POW through his own criminality of desertion, and the tens of millions of dollars we spent, and the terrible deal brokered, to save him.   

  17. Pippy Longstocking says:

    Bergdahl gets the hammer…write it down.  25 years plus…  All the bleeding heart mitigation can be submarined with this one sentence:  “If he didn’t want to be a POW, he shouldn’t have deserted in indian country.”

  18. Shawn says:

    That editorial is simply the Washington Post creating a story or, if you prefer, embellishing an otherwise bland narrative to give it wider general interest.  The extent of these comments shows how well they succeeded.  In the media, today, if you cannot find any news, you must make some news, and if you can’t make some news, you must be the news.

  19. Zeke says:

    CD said:

    And let’s balance that against the aggravation of the forseeable result of becoming a POW through his own criminality of desertion, and the tens of millions of dollars we spent, and the terrible deal brokered, to save him.
     

    How is evidence of Bergdahl having become a POW, or how money was spent to recover him, or how a deal was struck to trade folks for him, admissible as evidence in aggravation of the charged offenses?  Are any those things the “direct and immediate” result of the charged offenses under RCM 1001?  Those all seem to be pretty remote consequences, dependent on a lot of assumptions being made.  Can it be said that Bergdahl being captured by insurgents was a “direct and immediate” consequence of his desertion?   Was the expenditure of money searching for him a “direct and immediate” consequence of his desertion?  Was the trade that occurred years later for his release a “direct and immediate” consequence of that desertion?  I think not.  I’d not be surprised if the defense does not even bring up the POW ordeal other than in a very carefully drafted un-sworn statement.

  20. RY says:

    Pippy…25 yrs?  I hope u don’t have to drug test where u work.  That’s on another galaxy.

  21. Concerned Defender says:

    How is evidence of Bergdahl having become a POW, or how money was spent to recover him, or how a deal was struck to trade folks for him, admissible as evidence in aggravation of the charged offenses?….
     

    RCM 1001(4), “Evidence in Aggravation:  The Trial Counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense”
    Walk off the base with no weapon deep in enemy country, at night, alone… odds are good and certainly forseeable you’ll be captured and become a POW.  Any Soldier knows, intuitively and from significant pre-deployment training, that being a POW will be very, very bad.  It will require ceasing all missions to find you, at great risk and costs.  It’s forseeable that future negotiations would occur to recover you as well.  While some of this stuff is not immediate in terms of proximity in time, it’s all directly proximate and forseeable and I’d argue to get it all in.  The nature of a desertion and misbehavior is time delayed and not a typical offense not lending itself to  “direct and immediate” impacts, but tangible impacts that are instead time delayed.  For instance, a dentist purposefully giving patients HIV.  It may take years for the HIV to result in a deadly disease, but that would still be a proper argument for aggravation that a deadly disease was purposefully transmitted.  Same thing here… there’s almost a tolling on the concept of “direct and immediate” because these rescue missions and negotiations – while forseeable – take significant time. 
    If I were the TC I’d argue this aggravation for every last material impact, loss of life, redirecting air support, millions of dollars, etc. to recover this deserter, since the evidence is overwhelming that’s what he did.  Again, from an honest broker standpoint without an agenda; a person like me who is generally very defense oriented in representing service members and viewing these cases.  
     

  22. Concerned Defender says:

    Since I cannot edit the above, I will simply add an analogy to the above.  It’s not uncommon for the Coast Guard or other rescue organizations to bill people they rescue for the rescue operation, when the rescued people were irresponsible or negligent in venturing out into bad weather, stormy seas, dangerous hiking routes, etc.  
    Same thing here.  If (more like when) he’s convicted, Bergdahl’s actions were criminal and appropriate aggravation is any of the forseeable mission costs, deaths, and deals to recover him. 

  23. Tami a/k/a Princess Leia says:

    CD,
    I think you need to take another look at the definition of “aggravating evidence.”  Without the vitriol.  Bergdahl had nothing to do with the decision to swap Taliban for him.  In fact, I am not sure that was even “forseeable,” since the legality of that decision was questionable.  Sending other Soldiers to go look for him when they realized he was gone?  Yeah, I can see that.  But everything else that flows.  No, I don’t see it as aggravating. I would also be interested in knowing how many of thkse Soldiers complained about being bored and having nothing to do.
     
     
    Everything else is the cost of doing business.  As far as the Coast Guard charging for their services, please point me to a reg or directive or something that says they can do that, because unless their work stems from a false report, I don’t see how they get to legally charge for the cost of doing their jobs.  No more than the government gets to complain about the cost of court-martialing him or any other accused.  You don’t want the cost of doing business?  Then don’t court-martial the guy.
     
     
    I was under the impression Bergdahl wouldn’t be able to claim POW status if he’s convicted of either AWOL or desertion?  Can someone enlighten me?  Also, if he’s convicted would he be reduced to E3 automatically?  Would he then owe back pay for the promotions subsequently determined to be unlawful?

  24. Concerned Defender says:

    I wasn’t inferring that Bergdahl be billed, but it is valid aggravation if convicted since a costly rescue is forseeable.  As for the CG billing, I meant for criminal acts like a hoax, or the actual bill a company may charge for rescue/recover of your boat.  As for other organizations billing, the internet is full of examples of rescues for negligent folks being billed.  Do a google search.  Plenty of examples of hikers and skiiers and climbers being billed for their negligence which then leads to costly rescues.  And even if not billed for the rescue, certainly aggravation worth considering.

  25. Zeke says:

    CD, even circumstances that are “certainly foreseeable” are not proper evidence in aggravation unless those circumstances are also “directly” and “immediately” resulting from the charged offense.  I think all the circumstances you have described are collateral consequences of the charged offenses, not direct or immediate consequences.  From my view, for that reason, they’re not admissible unless the defense opens the door.
     

  26. Concerned Defender says:

    Zeke, so what then would be proper aggravation of a desertion that results in capture, in your view?  Given my example above, with a dentist purposefully infecting patients with AIDs, would it not be aggravating or perhaps even another crime altogether if the patient died?  Or how about a scenario where a military engineer constructs a building, which collapses 5 years later but upon investigation it was directly the result of the poor engineering design which is criminally negligent or even purposeful… in spite of it being years later, are these not proper aggravation if the dentist and engineer are convicted?
     
     
     
     
     

  27. Zeke says:

    CD, judt for clarification’s sake: The reason I think the consequences you mention are collateral rather than direct and immediate is that there are too many third party decision-makers involved for each one of those consequences who could have broken the causal chain.  Bergdahl’s criminal responsibility in sentencing for the decisions made by other human beings down the causation line, most of whom were his superiors, has to be cut off at some point.  Additionally, for at least the prisoner-exchange circumstance, there was a substantial amount of time that passed between the offense and the supposed aggravating circumstance.  It’s hard see any direct and immediate causation there.    

  28. Zeke says:

    CD, and I’ll concede that the cut off as to what constitutes a direct and immediate consequence and what is too remote to be admissible as evidence in aggravation is a matter of discretion.  Trial judges rightly have wide latitude there.  Even though I think it unwise, I doubt a military judge who, after hearing argument from both sides, decided to let in the expenditure of funds and the life lost looking for Bergdahl would be found to be in error on appeal.  He or she would rightly benefit from the abuse of discretion standard.  Letting in the evidence about the prisoner swap, though.  I think that would be more concerning.  That seems so far removed from the actual crime both in time and in its nature – it’s so far removed from the environs of battle where the offense occured.  Plus, there were undoubtedly other interests at play behind the swap that we’re not apprised of.  Letting in that evidence would be troubling.

  29. Concerned Defender says:

    Zeke, I respectfully disagree.  Anyone serving in the military and in a combat zone would have at least some idea of the playbook for what happens if a service member becomes a POW (In fact, Bergdahl even inquired about things of this nature, such as what would happen if he left and took his sensitive equipment – but set that aside for now).  Said military member would know or should have a rudimentary idea that:  1.  The military does routine accountability of soldiers; 2.  If you are missing, they will go looking for you;  3.  Looking for you will take lots of people and equipment;  4.  These rescue parties will be expensive and distracting to the other missions, and will likely become the priority;  5.  Some folks looking for you might die in conducting the search; 6.  At some point, you might be a negotiation pawn and part of a financial or prisoner swap deal, which is not uncommon.  
    This is not a surprise, and has happened since the dawn of time.  It’s my view that if he’s found guilty, regardless of the passage of time, he should generally be held accountable as aggravation for the money, lives lost, and the prisoner swap since – if proven to happen – these are all the proximate or cause in fact, directly related, and immediately forseeable (even if their occurrence wasn’t immediate, just like the HIV and faulty building examples above).  
    A stern lesson needs to be given, to satisfy the sentencing factors including deterrence and punishment.  Service Members need a very stern reminder of why you don’t desert in a combat zone.  Historically, deserters were shot… so there’s that to think about. 

  30. Zeke says:

    CD, it’s the # 6 point you made that most concerns me… even how you phrased it seems, to me, to be contrary to a finding of direct and immediate causation: “at some point, you might be a negotiation pawn and part of a financial or prisoner swap deal, which is not uncommon.”  You wrote that point out using language that is much less confident than your previous points.  The language you used for that point sounds pretty speculative, and I think the fact that it sounds that way means it’s so far removed from the crime to be admissible unless the defense opens the door.  It’s hard for me to say Y is “directly” or “immediately” caused by X when Y is merely something that “might” happen, and could be a financial swap, but also could end up being a swap of prisoners instead, we’re not sure, and, whatever Y is, if it even happens, it is merely “not uncommon.”
     

  31. Concerned Defender says:

    No no, let me re-explain.  POW prisoner swaps have always occurred, in nearly every war, throughout time.  It would not matter if the day after he disappeared a prisoner swap occurred, right?  So it equally does not matter if it’s 5 years later.  It’s highly predictable and forseeable result, directly tied to the misconduct (again, assuming a conviction).  

  32. Concerned Defender says:

    I guess the question is whether you would agree that if within 12 hours of Bergdahl’s capture, we did a trade for him.  Would that be direct and immediate enough?  If so, why does the passage of time have any material bearing on the analysis?  I’d say it has no bearing on the forseeability or proximate causation.  A swap today, or in 5 years, under the same terms, is equally aggravating. 

  33. Dew_Process says:

    Article.  Some of you may remember this.

  34. stewie says:

    CD, I don’t know why you are struggling so hard with the concept that the passage of time lessens the likelihood that something is a natural and probable consequence of an act.

  35. Concerned Defender says:

     
     
     

     

    CD, I don’t know why you are struggling so hard with the concept that the passage of time lessens the likelihood that something is a natural and probable consequence of an act.

     

     
    And I struggle with others’ (purposeful) unwillingness or inability to see that proximity in time is not the right metric, as “immediate” relative to the subject matter.  Here’s yet another of simple analogies/examples:   Soldier steals a hand grenade and hides it in a long-term storage locker.  Years later someone finds it and accidentally detonates it and is injured.  Surely there is going to be aggravation.  Another example.  Soldier buries a landmine in Afghanistan.  Years later someone steps on it and detonates it and is injured.  Soldier pushes a pregnant woman down the stairs.  Baby develops undetected but directly casually linked brain injuries that are medically certain to the trauma many months prior.  Soldier removes the firing pin from his buddy’s rifle as a prank before deployment.  9 months later, the prank victim is in a fire fight and his weapon fails to work, and he dies unable to defend himself in a firefight.  Soldier on rear detachment steals the IDs and credit cards of several deployed Soldiers and ruins their credit.  They are unaware of it for 15 months until the come home from deployment and try to rent/buy homes and vehicles and are all denied credit.  Medical malpractice may take months or years for symptoms to develop and causation to be determined.  Psychological harm that occurs to a rape victim over the 2 years after her rape is clearly fair game for aggravation. 
    Surely, there is going to be aggravation in spite of the passage of time in these examples because sometimes time delays until discovery or action are built into the offense or the delayed damage of the offense (HIV into AIDS, landmines detonating, impacts of credit and ID theft, injury to a fetus, etc.).  Same with a person convicted of going AWOL/desertion and becoming a POW.  As I explained above, the response by the US Government is fairly predictable, even though efforts may take years. 
    It’s a relatively simple concept.  “Immediate” is relative to the circumstances, but the real test is proximate and forseeable results. 
    Clearly “immediate” isn’t a literal term, otherwise anything outside of 5 second response would not be considered aggravating.  
     
     
     

  36. Joseph Wilkinson says:

    On this particular crime, we do have an ethic of “POW/MIA – You Are Not Forgotten – No Man Left Behind.”  Not “POW/MIA – It’s Been a Few Years – Tough Break, Dude.”  So I think it’s very, very foreseeable that we will go a long way, for many years, to try to get someone back, and that this will include everything from dangerous missions to costly prisoner swaps.
     
    I’ve read through his interview with General Dahl and the Article 32 transcript from the Defense webpage now.  I see that Bergdahl at least obliquely recognized this himself around page 25 of the Dahl interview (in that he recognizes we put a high value on Soldiers’ lives compared to past militaries)…though I don’t think the test relies on the accused’s own perceptions anyway.
     
    (I see he had a few things to say about the letter quoted in Rolling Stone.  I see he doesn’t explain the anti-American statements at all; in fact around pages 114-16 he tries to wrap his desertion in the flag, though he does try to walk back the anti-Army rhetoric a little bit.)

  37. Concerned Defender says:

    Please see also the notes in the MCM RCM 1001.  The evidence must be of circumstances directly relating to or resulting from an offense of which the accused has been found guilty. See United States v. R o s e, 6 M . J . 7 5 4 ( N . C . M . R . 1 9 7 8 ) , p e t . d e n i e d, 7 M . J . 5 6
    (C.M.A. 1979); United States v. Taliaferro, 2 M.J. 397 (A.C.M.R. 1975); United States v. Peace, 49 C.M.R. 172 (A.C.M.R. 1974).

    Also see:
    http://afcca.law.af.mil/content/afcca_opinions/cp/curran-37185.u.pdf     US v. Curran, (2009) holding that an investigation into an offense is proper aggravation; and citing other examples such as the costs of a Marine’s search and rescue in US v. Lawson, and in another case aggravating evidence of the victim’s credit which was stolen by the accused (US v. Bellingham)… 
    http://afcca.law.af.mil/content/afcca_opinions/cp/marcus-35047.u.pdf    US v. Marcus (2003), holding that the impact on the unit (reliefs and reassignments over a course of time) was valid aggravation against Marcus who helped hide a unit firearm from the unit for a year.  A dozen people in the unit were fired or punished and this was valid aggravation.  Clearly “immediate” was relative. 
    No time, or interest, to research this all night.  Just a quick look for some cases supporting the notion that proximate cause and forseeable trumps any notion of a technical “immediacy” of an aggravating event.  
     
     

  38. stewie says:

    Well, CD, don’t know what to tell ya. You’ve determined time doesn’t have any impact, and you’ve determined that the non-proximate cause things you’ve argued for are in fact proximate causes.  It looks like the government doesn’t agree with you given what was charged and what was not charged, and I don’t think you’ve convinced many here either. So I think we’ve reached the agree to disagree portion of the program.

  39. Tami a/k/a Princess Leia says:

    CD,
     
    First, you assume Berghdahl will be convicted of misbehavior in the presence of the enemy.  I’m not convinced he’ll be found guilty of that.  If he’s found not guilty of the misbehavior, then I think all the search & rescue stuff doesn’t come in.  Second, even if found guilty of misbehavior, the “prisoner swap” still doesn’t come in.  I know people will have differing opinions on this, but how is it “foreseeable” that POTUS would approve a “prisoner swap” contrary to federal law?  I didn’t see that one coming.  And that’s something he had control over.  Comparing Bergdahl’s situation to a dentist intentionally infecting someone w/ HIV is comparing apples to oranges.  The dentist made a conscious choice to inflict injury on someone–Bergdahl didn’t make a decision to have 5 Taliban swapped for him.

  40. Concerned Defender says:

    This aggravation leads to an interesting discussion of causation, proximate cause, intervening cause, etc.  
    Say you criminally pull a fire alarm as a college prank.  In responding the fire rescue trucks driving to the emergency hit and kill a person.  You would agree there is some criminal liability and aggravation for the hoax player in spite of unforseen specific circumstances.  In general, individuals own the forseeable results of their criminal behavior (we apply this to the natural and forseeable general results even to co-conspirators, say robbing a bank and someone gets shot).  
    So I guess arguing about whether Bergdahl is responsible for this or that rescue attempt over a period of time, and even a prisoner swap, goes toward forseeability.  The specifics of how many aircraft, how many people looking, and/or how many years later and how many enemies are ultimately traded, are never a factor in a causation analysis.   A causation analysis goes toward whether these events are a natural and forseeable effect of the underlying criminal behavior.  
    So, let’s say you are a Soldier in a ficticious combat zone in a war with Russia, behind enemy lines.  You are captured.  As you sit as a lawful POW with POW status, what actions do you hope or expect your government takes to retrieve you.  
    1.  Surely it’s entirely foreseeable and predictable they will try to locate you using any and all means necessary.  
    2.  Once they locate you, they will certainly make attempts to rescue you at the first chance, sending in a SEAL or Ranger or SF team, such as with Private Jessica Lynch and 5 others in 2003 in Iraq and countless other examples, or 2012 when Dr. Joseph was rescued by SEAL Team 6 but Navy Petty Officer Checque was shot and killed.  Two of thousands of examples of rescues.  
    3.  You’re a hostage and bargaining chip.  Prisoner swaps are common, and countless have been done in history, including recent history.  WWII, Cold War spy swaps, nearly every major conflict.  
    I don’t see how any leadership moves to negotiate, search, rescue, or even trade exonerate Bergdahl from the natural, foreseeable, and long term costs associated with his recovery.  Since none of these can be “immediate” as defined by Webster, “immediate” is a relative term, just like “immediate” is a relative term regarding when someone might step on a landmine you planted 5 years ago.  
    In my view, if convicted, Bergdahl owns the aggravation of these entirely predictable, natural, and forseeable events.
     
    This is all mooted however; dollars to donuts the Commander in Chief will pardon/exonerate him to clean up his legacy anyway.  Bergdahl will get a 5 year back pay and rank promotion windfall, a Purple Heart, BSM, and write a book and make tens of millions of dollars and live happily ever after…  for being a coward and traitor to the US as evidenced by what is clearly his intent in his notes and premeditation for preparing for his adventure outside the wire.  
     
     
     
     

  41. Tami a/k/a Princess Leia says:

    The college fire alarm is a false alarm.  There is nothing false about Bergdahl’s capture.  Can’t say he only pretended to be missing for 5 years.  And there was nothing “common” about the Taliban 5 prisoner swap.  As far as your theory of the fire department accidentally killing someone as they’re responding to the false fire alarm, that death is too far removed to be “aggravating” evidence for the false fire alarm.  I would expect the fire department to be careful to avoid accidents.  Liability attaches to the fire department, not the prankster.
     
    I have no issue with your “immediate” argument that “immediate” can happen years down the road.  But I think you’re conflating “foreseeability,” which goes to criminal liability, with direct causation, which is a sentencing factor.  There has to be a “direct” cause that would justify a harsher sentence for Bergdahl, if he gets convicted of anything.  I think it’s going to be AWOL and that’s it.  I also think he’ll get a BCD.  Jail time is questionable.
     
    I’m kind of surprised that someone with a pseudonym that includes “defender” takes such a harsh stance in this case.  While my personal opinion of Bergdahl is pretty low, I’m trying to give him the benefit of the doubt, as he’s entitled to.  This case isn’t cut & dried.

  42. Joseph Wilkinson says:

    The college fire alarm is a false alarm.  There is nothing false about Bergdahl’s capture.
     
    Is it more like setting an actual fire then for the sake of raising an alarm?  He’d still be liable for the consequences.   Note that in the interview — not that I buy his story in toto — he claims that he was expecting his “DUSTWUN” to create a hullabaloo.  His theory (so he says) is that the unit would raise the alarm, everyone would be upset over the missing Soldier, and then he’d show up at the other FOB and demand to see the general.  And since everyone was so alarmed about his having been missing, he’d get his audience and be able to tell the CG what terrible leaders his platoon, company, and battalion-level leadership were.   So he not only should expect, but admits that he actually did expect, that the alarm would be raised.  (Which comes with the implication, though I didn’t see him say it, that the Army would move heaven and earth to recover him.)  
     
    (The triggering event, according to him: He and some other Soldiers got yelled at by the BC for not wearing their IBA when they were supposed to.  Then they got Article 15’s.)   
     
    He also claims to have acquired a native disguise, so apparently he anticipated the possibility of capture as well, even if he is telling the truth.
    (The interview, to my mind, makes him a much less attractive character than the news stories…especially in conjunction with the letter.  In the interview, he comes across as God’s Gift to the Army, a PT stud who should’ve been at the Special Forces Q Course, not on this rinky-dink deployment with these lesser beings.  I was TDS in Alaska when that unit came back, and am slightly familiar with some of the people he’s so condescending about…of whom I will say only: he is not fit to clean their boots.)

  43. k fischer says:

    I can’t wait for this trial to be finished, so this blog can go back to talking about Servicemembers getting railroaded for sexual misconduct they did not commit……
     
    Speaking of which, Ft. Benning TDS has a pretty sharp crew of attorneys who have been on a tear for the past year.  I’d like to say that I can’t wait for them to PCS, but I’d be lying.  In addition to being sharp, they are also a great group of guys.

  44. stewie says:

    That last paragraph is interesting Tami..if BB had been found and returned a couple of days later, no harm to him, no news media presence, would he have been charged as he has, or “sent home to get the help he needed?”
     
    Does anyone dispute that this is a Soldier with at the very least moderate mental health issues? I’m not suggesting anything rising to insanity, that’s a leprechaun riding a unicorn. But he ain’t all there either.

  45. Joseph Wilkinson says:

    Well, if you look at the stories in Stars & Stripes, his “issues” in the Coast Guard were just an “adjustment disorder.” That is really nothing…you see it all the time in social security cases and even psych evals for Soldiers. It basically means, “he got stressed/didn’t fit in at work.” (Since that “work” was Coast Guard boot camp that is not all that surprising, and it’s no great knock on the Army that they decided to give him a second chance later)
     
     
     
    Schizoid personality disorder like Narcissistic Personality Disorder, or Sociopathy….is a set of unpleasant personality traits related to how he deals with other people. All the articles I found stress that it makes a person something of a “loner,” disinclined to intimate relationships and less interested in sexual relations than others (Bergdahl reports having a girlfriend before he left so he may not be a severe case). Some talk about “chronic broken promises,” a tendency to confirmation bias, and denial. But I never found one that talked about delusions or an inability to think rationally. Not really mitigating. (Or at least, I’d hate to try that on even a fair panel…”ease up on my client, guys, the poor dude’s a sociopath/narcissist!”).
     
     
     
     
    Neither of these diagnoses amounts to “not being all there” the way I see that term used.
     
     
     
    Likewise neither of them relates to the explanations I saw him give in his e-mail to his father and his long interview with General Dahl. When you read the latter, what leaps out at you is a “me first” attitude and a big but brittle ego. In his own mind he was an awesome Soldier who should’ve been at the Q course already, and way too good for the others around him. (In the later parts he talks about how he “holds people to high standards.”) When the BC yelled at him and gave him an Article 15 for not wearing his armor outside the wire, it was proof that the BC was an inferior sort of leader…Bergdahl, you see, knew all about how a commander should have behaved in the circumstances, and the BC was just not living up to his standards. The arrogance is incredible…but I don’t see arrogance listed as a symptom of schizoid personality disorder, nor do I think it would be mitigating if it were.
     
     
    As long as he was being treated as a “stud” (which apparently he was, judging by some of what the general says, and the other witnesses at the 32), he was just fine. He loves to talk about his interest in the Samurai code and other old-fashioned warrior ethics (all of which he was glad to pontificate about, none of which he lived up to). But once he did wrong and got treated like another dumb Joe who didn’t obey orders…that was a different story. Like Huet-Vaughn and Rockwood, he tried to justify his crime as following “higher ideals”…but even less than those cases does it come across that way. Even if you accept his interview answers at face value, it’s more like “the butthurt” than “the crazy.” 

  46. stewie says:

    With all due respect, one of us doesn’t care much about BB one way or the other, and one is apparently deeply offended by him. So perhaps there’s something coloring one of our perceptions of the guy. I don’t think he’s a hero, nor do I think he’s blameless, but no I don’t think he’s a guy who’s just an arrogant jerk with maturity problems.  Normal people who arrogant jerks don’t do something certifiably crazy like walk off their FOB in Afghanistan into the wilderness. Arrogant people tend to be pretty big on self-preservation. Me-first folks tend to be big on it as well.

  47. Joseph Wilkinson says:

    Oh, there’s no doubt that I am “deeply offended” by someone who writes an anti-Army, anti-American screed to his parents, then deserts his unit in a combat zone.  You’ve got me there for sure.  I would be deeply offended even if he’d been recovered in five minutes and no one had been hurt, nor any dangerous prisoners released, as a result.  (The story Tami links to says a SEAL lost his leg on a mission to find Bergdahl, though not that anyone was killed on a dedicated mission for that purpose.)   Now I’m not offended that the defense is going to mix up a big pitcher of Kool-Aid on his behalf.  That’s what they do.  But I am far from eager to gulp it down, and you’d better believe I’m going to read the ingredients.
     
    When someone suggests that a person who commits a crime like this should receive a lesser punishment, or even (as I believe you have said from the beginning) that he should not be prosecuted at all, and part of the reason is, “he has mental issues”…I want to know what those “mental issues” are and if they really explain the crime.   You could say that I have “a painful physical deformity” and it’s true….I have flat feet, and if I take a long walk with no arch supports, it hurts.  But when you look at the details you wouldn’t feel so sorry for me as you would for Quasimodo, and if I were abusing painkillers and blaming my “condition,” you’d cut me less slack than you would him.
     
     
    In this particular case, when I look at the diagnoses and compare them to what the man actually says in the interview, I don’t get the kind of mitigation I see people talking about, nor the kind I would be looking for if I were trying to defend him.  It’s kind of like discovering that your child molester client has an eating disorder…very sad and all that, but it doesn’t make you do a “certifiably crazy” thing like molesting children (hey, normal people don’t do that).   The defense might love it if you just said “he has mental issues” and leave it there. 
     
    The “self preservation” thing can be read in a very aggravating way…as suggesting that his story is after-the-fact justification, and the reason he walked off without a weapon is that he was planning to hand himself over to the enemy, and figured it was safer to be in their hands than to get shot at by them.  That fits what he wrote at the time better than his ex post facto talk to General Dahl, where he did it for the warrior traditions of Sparta and the Samurai, plus the Constitution and the Statute of Liberty (yes, he invokes Lady Liberty in the interview).   

  48. stewie says:

    You wouldn’t have known he existed if he’d been found five minutes. He likely wouldn’t have been court-martialed. At worst, perhaps an admin chapter, more likely he’d have been sent to the docs, and then home. You have no basis to know that he planned to “hand himself over to the enemy” and again, even if that were his plan, he had no way of knowing that the enemy would do anything but shoot and kill him, no rational, right-thinking person would. That doesn’t “fit” anything, and if he DID think that way then he really WAS/IS crazy. I think prepubescent attraction is a mental illness. I don’t think it’s normal, nor do I think the people do it out of gleeful evil.  Of course, the damage they do means we can’t just let them out on the streets and need to separate them away from society for a long, long time. At any rate, you’ve decided BB is an evil donut with evil cream filling and evil sprinkles on top. I think BB is a guy with some serious mental issues who did a really stupid thing. He paid the price with five years of torture (I know, I know, you aren’t really sure that happened either and that BB wasn’t sipping tea with them for five years).

  49. Joseph Wilkinson says:

    You have no basis to know that he planned to “hand himself over to the enemy” and again, even if that were his plan, he had no way of knowing that the enemy would do anything but shoot and kill him, no rational, right-thinking person would.
     
     
    I have his words that he wrote at the time.  He had worked himself up into a major-league snit against the USA, the U.S. Army, and the 4/25 (Airborne) Infantry.  Put the words together with the actions and they match pretty well!  They just don’t speak well of his character.  
     
     
    Deserters in past wars were routinely shot by their own sides.  Deserting was always a hugely risky thing to do, yet many did desert.   That didn’t mean they were all crazy or should all be packed into hospitals (which would, perversely, have been a huge incentive to desert…).   Surrendering to the enemy has likewise always been risky — many enemies are less than punctilious in their treatment of surrendering men, and surrendering men do get shot.   Yet millions have done just that throughout military history.   If Bergdahl’s defenders want to mitigate his crime with “mental illness,” let them show a diagnosis that actually does mitigate the offense, and not just a handwave towards “mental issues.”
     
     
    I think prepubescent attraction is a mental illness. I don’t think it’s normal, nor do I think the people do it out of gleeful evil.  Of course, the damage they do means we can’t just let them out on the streets and need to separate them away from society for a long, long time.
     
     
    Of course, the damage done by combat-zone deserters (to the very concept of discipline) means we can’t just give them a White House fete and a cupcake and let them walk free, and need to give them a hard punishment as an example to others. 
     
     
    (I know, I know, you aren’t really sure that happened either and that BB wasn’t sipping tea with them for five years).
     
     
    In the Article 32, the defense says he suffered uncontrollable diarrhea for three and a half years straight in primitive conditions with no medical care.  When I read that, I ask myself why he didn’t die of dehydration.  Were the “women and children” guarding him fetching him pails of water, or giving him Oral Rehydration Therapy…or is he giving us what the grass becomes when Bossy’s boyfriend gets through with it?   
     
     
    In the Dahl interview he paints himself as an action-hero POW, making daring escape attempts from time to time.  It fits the overall heroic picture of himself that he paints in the interview, the Spartan Samurai who is too good for the regular Army, but it doesn’t fit what he wrote and did at the time he left.  There is objective evidence that he injured his legs somehow at some point during his captivity…he says from a stress position (in which case how did he manage the multiple daring escape attempts?)…but for the rest, he is not acting like a credible witness. 

  50. stewie says:

    1. Objection, nonresponsive. Nothing you typed in that first paragraph was remotely responsive to what I wrote. I said nothing about a handwave. I haven’t said he definitively has anything. I have said that in my laymen’s opinion, I suspect something ain’t right with the kid. We will see what actual diagnosis comes forward, but I suspect at least the defense will have something more than “he’s an evil jerk.”
     
    2. I don’t even know how to respond to this one. First, no one has said that he should go without punishment. Everyone has said he needs to go, the only question is what is the appropriate manner. Second, five years of torture and captivity would seem to be punishment.
     
    3. As I suspected, with no evidence, you think he was partying it up with the Taliban. Like I said, one of us has a real emotional tie to this case, and one of us does not.