In an opinion piece published by the Alaska Dispatch News and available here, Professors Rachel VanLandingham and Joshua Kastenberg (both retired Air Force Lieutenant Colonels and former Air Force military judges) call for the complete dismissal of the charges against Sergeant Bergdahl (CAAFlog news page) because:

On the campaign trail, then-candidate Trump repeatedly, and publicly, condemned Bergdahl as a traitor, and variously called for his execution by firing squad and by being pushed out of an airplane. This was not a one-off event; candidate Trump made his conclusion that Bergdahl is a traitor and should be executed a campaign meme, returning over and over to the same rhetoric.

Trump has never disavowed these comments. While it is true he hasn’t repeated them in the few short months he’s been in office, that’s because he doesn’t have to -– he knows he has already sent a very loud, very clear and very powerful message to his military subordinates (many of whom voted for him) he wants Bergdahl convicted and given the harshest punishment possible.

They echo the oft-repeated claim of Bergdahl’s defense counsel that the President’s campaign-trail comments are unlawful command influence so severe that it can’t be remedied. That claim is the subject of a seventh petition for extraordinary relief currently pending before CAAF (noted here) (pleadings available here).

While Professors VanLandingham and Kastenberg argue that the continued prosecution of Bergdahl risks “the fairness, credibility and integrity of the military justice system,” I believe that the danger to military justice is in dismissal, not continued prosecution.

Dismissal would, as I explained here, result in Sergeant Bergdahl’s honorable discharge from the Army, and it would also guarantee him other benefits in connection with his alleged desertion (and subsequent capture by the Taliban); an offense that, as I explained here, it seems Bergdahl confessed to committing. Bergdahl also engaged in a dialogue with filmmaker Mark Boal that resulted in roughly 25 hours of tape, and Bergdahl allowed the Serial podcast to use those recordings (according to the Serial podcast; link to episode transcript). Those recordings contain more damaging admissions and other aggravating evidence (some discussion here), and their publication is likely far more damaging to Bergdahl than anything said on the campaign trail.

Dismissal is a remedy for unlawful command influence, but it’s the most extreme remedy and it means that Bergdahl could never receive a fair trial in the wake of Trump’s pre-election comments. Getting a fair trial may be harder than it would have been before the comments – or it could be easier if the court-martial members think the comments were inappropriate and hold them against the prosecution – but there’s no evidence that a fair trial is impossible.

Professors VanLandingham and Kastenberg also lash out at their Army colleagues:

Bergdahl’s defense has already tried to get this case dismissed on these grounds. However, not surprisingly, the military judge and Army appellate court (also consisting of active-duty military members) have declined to cross their commander-in-chief in that manner.

I think this is a foul blow. There’s absolutely no evidence that the military judge (Colonel Jeffrey Nance) or the multiple appellate military judges who have considered this issue are the slightest bit afraid to correct injustice when they see it. Rather – as I noted here in the context of comments by Senator McCain that Bergdahl also tried to use to win a dismissal – the reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army trial and appellate military judges in the face of any kind of improper influence. VanLandingham and Kastenberg must have a remarkably dim view of the Army’s Judge Advocate General’s Corps.

The credibility of the military justice system is founded in its systemic ability to do justice, not in the result of one particular (and factually and emotionally thorny) case. If those championing dismissal of the charges against Bergdahl really believe that the trial military judge and the Army CCA are incapable of remedying unlawful command influence committed by a presidential candidate who subsequently gets elected, then the damage to the military justice system is already done.

There is significant evidence that Bergdahl committed multiple offenses in departing and staying away from his combat outpost, and many of his fellow soldiers suffered as a result. That Bergdahl spent five years in captivity is a mitigating factor for sure, but it’s one that must be considered in context with the other facts of the case.

The appropriate place for that to occur in the first instance is neither the court of public opinion nor the appellate courtroom; it’s a court-martial.

28 Responses to “The breathless claim that the Bergdahl case is causing the “inexorable erosion of the credibility of the military justice system.””

  1. Mr. Burns says:

    Spot on Zach.  Dismissing this case after all this time would cause incalculable damage to the military justice system.  The majority of Americans would have zero confidence in it should that happen and when they turn to their elected representatives who are going to try and “help”, good-bye UCMJ. 

  2. jagaf says:

    WADR to the authors (and I have met and respect Lt Col Kastenberg, even if I don’t always agree with him), I completely concur with your point about the reference to the MJ and ACCA. There is no evidence to support that assertion and no call for it to be made.

  3. TaxJAG says:

    If the statements made by President Trump are not prejudicial enough to warrant a finding of UCI in the Bergdahl case, I wonder under what circumstances would Mr. Spillman ever believe UCI to be appropriate.
    Mr. Spillman’s characterization of VanLandingham and Kastenberg’s comments as “lashing out at their Army colleagues” is manifestly incorrect and is nothing more than inflmatory rhetoric designed to shift the readers attention away from the significant military justice issues raised in the two Air Force JAG’s article.  Mr. Spillman would have been better servered to take an unbiased view as to the history and purpose of UCI in the military justice system and in particular in regard to the facts of the Bergdahl case.  

  4. Lieber says:

    It’s very clear that the Bergdahl case (at least on CAAFLOG) has become a tabula rasa for political views (on all sides).

  5. Matt says:

    TaxJAG: Perhaps comments made by somebody who can actually commit UCI?  Can you show me the precedent to establish that a candidate for political office can commit UCI?

  6. DCGoneGalt says:

    A candidate for POTUS made the comments.  That candidate is now POTUS.  There is at least the appearance of UCI in the proceeding regardless of when the comments were made since a reasonable person would believe that CinC has stated a predisposition to the case. The shifting of the burden to the government is upon an appearance of UCI.  And then the Gov can disprove it, maybe even without the burden shift from the appearance of UCI depending on voir dire.  I don’t see why even considering dismissal is reasonable prior to voir dire and I can’t understand how it’s reasonable for someone to not see how there isn’t the appearance of UCI.  
     
    Dismissing to send a message isn’t following the law.  And denying the appearance of UCI, even though comments were made pre-election, is a denial of reality.  

  7. TaxJAG says:

    Matt:  Are we in agreement that if the comments made by candidate Trump were made after January 20, 2017, we would have UCI?  
    If so, then we turn to whether unrepudiated comments made as a Presidental Candidate becomes attributable to him/her as POTUS.  Its an unsettled and interesting question that I think needs to be answered by CAAF.  I don’t know whether there is precedent either way. 
    I still find it interesting that the Article 32 IO recommended a SPCM. Makes me think there is substantial mitigation in this case.

  8. Matt says:

    TaxJAG: If the statements were made by President Trump instead of Candidate Trump then yes, they would be very problematic.  You queried “under what circumstances would Mr. Spillman ever believe UCI to be appropriate.”  I provided the answer that it would probably be if the statements were made by somebody who could commit UCI, which a candidate cannot under the rules.
    Additionally, I think your characterization of Zach’s reference to VanLandingham and Kastenberg’s comments as “manifestly incorrect and is nothing more than inflmatory rhetoric” is simply ridiculous.  These two essentially stated that COL Nance and ACCA are simply too afraid of President Trump to do the right thing.  I see that as a significant character attack and I don’t believe characterizing those comments as lashing out is manifestly incorrect. 

  9. The Rack says:

    What seems to get lost in all this rigamarole is that Bergdahl the traitor caused other good Soldiers to be wounded or killed looking for his sorry behind.  Where’s the justice for them while ole Bergdahl is living it up?

  10. Zachary D Spilman says:

    I think it important to emphasize that this issue isn’t merely whether Bergdahl is or is not (or may or may not become) prejudiced by unlawful command influence or the appearance of it. Rather, this issue has been exaggerated into the claim that the military justice system itself “is in jeopardy today” (fifth paragraph of the VanLandingham / Kastenberg piece) because Trump said some pretty-obvious things about the case during a very contentious presidential campaign.

    The military justice system can handle whatever happens in the Bergdahl case, and any claim that it can’t is – as I wrote – breathless.

    Though I would very much like to know why it’s taking the Army so long to get this case to trial.

  11. stewie says:

    As in the other thread, I disagree. The Army could toll his service by simply declaring him AWOL for the relevant time period. He could be chaptered under that scenario.

  12. Zachary D Spilman says:

    As wrote in my post last July, stewie:

    Now the Army could administratively determine that Bergdahl’s capture was an unauthorized absence caused by his own misconduct (see Army Regulation 600-8-4), and therefore his enlistment obligation was tolled during his absence (see 10 U.S.C. § 972), making it possible to administratively separate him for misconduct and give him something other than an Honorable Discharge. However that would require finding that Bergdahl did commit serious misconduct (and would likely deprive him of significant veterans’ benefits) without affording him the protections of a trial.

    A court-martial has numerous advantages not just for Bergdahl (who gets additional procedural rights, including the ability to file seven- and counting – petitions for extraordinary relief at CAAF), but also for the Army (because it adds legitimacy to the result).

  13. TaxJAG says:

    Zachary: As you just noted, legitamacy and transparency of the process is vital.  The perception of UCI clouds both.  Thats where the risk to the credability of the MJ system is threatened.  

  14. retmojag says:

    Zak – has a presidential candidate ever campaigned on achieving a specific result in a court martial?  If not then isn’t this a case of first impression? 

  15. Zachary D Spilman says:

    Those might be facts of first impression, retmojag, but that’s hardly unusual.

  16. Concerned Defender says:

    The correction for UCI isn’t necessary a dismissal and windfall for the accused.  There are other safeguards. 
    Trump indeed said things AS A CANDIDATE that might have been UCI if he were POTUS.  He was not.  Obama was POTUS.  Under Obama the case proceeded to where it basically is now, awaiting trial.  Some 6+ defense attempts to dismiss denied.  Charges preferred and referred all under Obama.  Obama had and rejected an opportunity to grant BB clemency.
    Any attempt to somehow connect Trump with the pending trial is so mentally disingenious and desperate that it’s an embarrassing position to align oneself with.  Trump essentially inherited the current BB trial status – pending.  To dismiss BB’s case by virtue of nothing changing other than a Trump election would be a total injustice windfall for BB.  If he’s not guilty, let’s have it be decided at a Court Martial so there can be no question.  If he’s guilty, that will come out as well.  The wrong result would be a windfall dismissal and hero status bestowed, and some $300,000 in presumed back pay gifted to him.

  17. Sheila M Lundlee says:

    Not a lawyer.  Just throwing it out there.  Any thoughts about the judges, who’ve issued restraining orders (?) and used the Candidate’s/President’s speech to counter government arguments that the actions were lawful?  It seems to me that there must be a link between the Candidate’s statements and subsequent actions on BB before the defense should prevail.  If he hasn’t made statements since the campaign and no actions have occurred, the system should be able to counter UCI.  I agree with Concerned Defender.  Had the President/CinC made those remarks, it would be a different story.

  18. slyjackalope says:

    Just take a deal for a SCM with an OTH waiver and be done with this farce.

  19. stewie says:

    Exactly.

  20. The Rack says:

    If you think it’s OK for this to end in a SCM and OTH, you have never served in a forward deployed environment.  Fact.

  21. TaxJAG says:

    TaxJAG: Perhaps comments made by somebody who can actually commit UCI?  Can you show me the precedent to establish that a candidate for political office can commit UCI?

    Matt:  By analogy, the US District Court in Washington State struck down Trump’s original immigration order based on large part on the comments Candidate Trump stated during the campaign which the Court found as evidence of discriminatory intent.

    If you think it’s OK for this to end in a SCM and OTH, you have never served in a forward deployed environment.  Fact.

    Actually, unless have you first hand knowledge of all the facts in the case, we should not be second guessing the Art 32 IO’s recommendation.
     

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

    I think since Bergdahl made several incriminating statements, suggesting at the very least he committed AWOL, I think it would be a miscarriage of justice to NOT go to trial.  As far as panel members’ opinion of Trump and his comments, that is what voir dire is for.  And I have no doubt that the vast majority, if not all, of the panel members’ opinions will be “I couldn’t care less about Trump’s opinions, either as candidate or as POTUS.”
     
    TaxJag, I don’t believe Trump’s comments, even if made as POTUS, count as UCI.  Giving his own personal opinion about Bergdahl is much different than Obama’s direction to “fire, dishonorably discharge,” etc. those accused of sexual assault.  And if Trump’s comments as a Presidential candidate could seriously be considered UCI, then I would expect a lot of defense attorneys to raise UCI motions on Hillary’s comments to sexual assault victims that they have “the right to be believed….”

  23. Concerned Defender says:

    @ TaxJag – your analogy about the 9th Circuit striking down Trump’s attempts at Immigration control fails on several levels. 
    The 9th Circuit was factually and legally wrong, and will be overturned.  The POTUS has the authority to do what he did, and regardless of the puffery it was a narrowly tailored non-discriminatory order/law impacting the same nations Mr. Obama cited as the highest threat for terrorism.  Host of other valid reasons I’ll let you research if you care to learn something.
    Purely political, and the hacks on the 9th circuit are the most overturned of any Federal Court if my information is correct.  I’ll spare mys scathing opinion of these “judges” on the 9th circuit.  We’ll see who eats crow when one of those illegals commits terrorism. 
    Campaign talk is often puffery, and all politicians engage in it.  Mr. Trump, to my knowledge, has said and done nothing material regarding BB since 20 January 2017.  His actions on the Immigration were squarely within the law, non discriminatory, and narrowly tailored to a small % of targeted nations that export terrorists.  Mr. Obama however, and his military, brought the BB case to where it’s now at.  Was Obama committing UCI?

  24. The Weirick says:

    This is sure proving the swift justice of the military-justice system. 

  25. Philip D Cave says:

    http://www.politifact.com/punditfact/statements/2017/feb/10/sean-hannity/no-9th-circuit-isnt-most-overturned-court-country-/

  26. stewie says:

    As that link shows, 99% of what the 9th Circuit does is the last word. As usual CD, your facts ain’t right.
     
    Tami, not sure how admitting to AWOL turns this into a court-martial or miscarriage of justice. No one has remotely suggested he’s innocent of any crimes, so his admissions don’t really move the playing field.

  27. Concerned Defender says:

    Eh, I largely stand by my statement.  Splitting hairs.  9th Circuit overturned in 8 out of 10 decisions ain’t so good and higher than national average, putting it in 3rd place for overturned circuits. According to the article, the Supreme Court reversed about 70 percent of cases it took between 2010-15. Among cases it reviewed from the 9th Circuit Court of Appeals, it reversed about 79 percent.
     

  28. stewie says:

    Except it ain’t 8 out 10 decisions. It’s less than 1 percent of all decisions. And with such a small sample size there is literally no difference between 70 percent and 79 percent, because one single case decided a different way can swing the percentages ten percent or more.
     
    But yeah, I’m sure you will stand by your statement.