Various news outlets are reporting on a ruling by Army military judge Colonel Nance that the President’s comments about the Bergdahl case neither constitute unlawful command influence nor create the appearance of unlawful command influence.

For example, the Associated Press reports here that:

President Donald Trump’s scathing criticism of Army Sgt. Bowe Bergdahl won’t prevent the soldier from receiving a fair sentence for endangering comrades by walking off his post in Afghanistan in 2009, a judge ruled Monday.

The judge, Army Col. Jeffery Nance, said the court has not been directly affected by Trump’s remarks, nor would the comments cause a reasonable member of the public to have doubts about the fairness of the military justice system. He had to consider both questions in deciding on whether actual or apparent unlawful command influence was interfering in the case.

“I am completely unaffected by any opinions President Trump may have about Sgt. Bergdahl,” the judge said. He added that prosecutors had convinced him that the Trump comments won’t put “an intolerable strain” on the public perception of military courts.

Bergdahl’s defense counsel sought dismissal of all charges (after Bergdahl pleaded guilty) because the President made a brief reference to the case during a press conference.

Thanks to our reader for the tip.

58 Responses to “Military Judge: No unlawful influence taints Bergdahl trial”

  1. k fischer says:

    The New York Times reported: “I will consider the president’s comments as mitigation evidence as I arrive at an appropriate sentence,” the judge, Col. Jeffery R. Nance of the Army, said during a hearing at Fort Bragg.

  2. Seriously? says:

    Unfortunate. 
    I’ve a great deal of respect for this MJ and would’ve bet on a different ruling.  I just don’t know how it can be said that, after the President made his prejudgment so emphatically known and even clearly reiterated that prejudgment after cooler heads in the White House tried to walk back his earlier statements, that the government proved BARD the inexistence of at least the PERCEPTION of UCI.  
    I didn’t see the briefs, but the President made that a VERY tough sell. 
    Again, having not seen the briefs, and at the risk of second guessing a very good judge, I wonder if a better solution would not have been finding (admitting) UCI in the perception, and then fashioning a remedy to cure it, short of dismissal.  Technically, all that Biagase calls for is taking off of the table those punishments the President called for.  Since those punishments are not authorized/likely, seems a good way to split the baby.  While perhaps form over function, at least we get the acknowledgment that there was UCI in this case.  That judicial acknowledgment–in a case so clearly calling for it–would be leaps towards instilling public confidence–not further questions and doubt.

  3. Babu says:

    MJ stated he was completely unaffected by Trump’s comments, and had previously noted that he was an O-6 on the verge of retirement.  
    As a hypothetical, would the analysis change if an MJ presiding over Bergdahl’s case was in the process of applying for a post-retirement job in the Trump administration?   

  4. stewie says:

    The important part for Bergdahl is his admission that he will consider it as mitigation evidence…which is exactly what we all thought would happen.

  5. (Former) ArmyTC says:

    So, Seriously?…you didn’t read the pleadings or see the argument of the parties (in other words, did NO research), but would have “bet” on a different ruling?  Seriously? Do you also pick your March Madness brackets based on uniform color or how cool the mascot looks? Or does that require too much research as well?

  6. Brian Bouffard says:

    I also heard that the judge will consider it as mitigation evidence – which illustrates yet again how the Biagase framework is utterly ignored in practice to protect bad actors in high places.  What evidence did the government offer to meet the highest burden known to the law?  Was there any?  How do you meet an evidentiary burden without evidence?
     
    Also, if the judge is considering Trump’s stupid remarks to be mitigating, doesn’t that clearly demonstrate that they DO, in fact, have an effect on the public’s perception of fairness?  If not, why consider them as mitigating?  Unlawful command influence may be an “intolerable strain” on our system, but we continue to tolerate it, don’t we?  Over and over and over and over again.

  7. Seriously? says:

    Brian Bouffard:  Yep, unfortunate…  Considering it as mitigation is not a remedy for UCI.

  8. Guilty Bystander says:

    All this speculation about UCI makes me wonder about that Rose Garden presser and that can’t help but make me wonder about the defense strategy in this case. In hindsight, wouldn’t it have been more prudent to get the naked plea in under the obama admin, when the un-UCI C-in-C was obviously favorably disposed towards the aforementioned defendant?
    What’s the remedy for MilJus malpractice?

  9. k fischer says:

    If the MJ is looking at the previous and recent ratifying statements, respectively, as mitigation, then how does that adversely affect BB?  I understand the point that it is an impossibility for someone to say they are unaffected by the statements Trump made, while also stating that those statements will be viewed as mitigating.  Is there some sort of harmless error analysis with UCI that will excuse any statement made by POTUS when they do not have an actual adverse impact against the Accused?
     
    GB, with the firestorm within the military that occurred immediately after the Rose Garden presser, I doubt it would have been prudent to get the guilty plea in right away, as the appearance was that Servicemembers were really miffed about the exchange.  Plus, there were 706 issues, a huge multiplicity issue, and a host of appellate issue to be made with regards to motions in limine.  There were issues with discovery, which had to be compelled.  On the contrary, I would beg to differ and posit that rushing into a guilty plea would have been malpractice.

  10. Nicholas P. says:

    > [I]f the judge is considering Trump’s stupid remarks to be mitigating, doesn’t that clearly demonstrate that they DO, in fact, have an effect on the public’s perception of fairness?Amen. Amen. Amen.

  11. stewie says:

    Effectively what the MJ is doing/saying is “I REALLY am not affected by his statements, so much so that I will even consider his statements as mitigating, THAT’S how much I am not affected by them.”
     
    It’s a bit of a split the baby/throw a bone thing that may not be correct using legal logic, but makes sense as a way to forestall any appellate issues.  Now, if the MJ hammers him with anything more than say 10ish years, that kinda weakens the whole mitigation argument.

  12. tinfoil wars says:

    “Now, if the MJ hammers him with anything more than say 10ish years, that kinda weakens the whole mitigation argument.”
    No one would even care about this case if Pres. Obama had not had a Rose Garden ceremony. Now, people are casually talking about him going to jail for a decade. We’ve all been affected by President Trumps comments. 
    If he had walked off and two people were injured looking for him that day, but he made it to the other base … what would be his sentence? Maybe one or two years and a BCD? Maybe a DD?
    It is only because he became a convenient way to attack President Obama that people are casually tossing about a decade of confinement.
    Instead we have the mitigation of five years of Taliban captivity and possibly a treasure trove of intelligence he provided when he was returned. Throw on top of that his mental illness (before and after), what the President has said about him, and the way he, his family and hometown have been attacked … what’s a just sentence? What the hell would time at the DB do for him? for the military justice system? for good order and discipline? 
    Any confinement is pointless.

  13. Nana says:

    What is the defense strategy here? Why did they not challenge the Judge (maybe it wasn’t reported)? They filed writs and were very aggressive and are now laying down.

  14. k fischer says:

    TW, 
     
    I think the case was referred in December 2015.  It wasn’t until November 8, 2016 at 2300 hrs, did anyone think that he was going to win the election.  Military folk were pretty pissed at BB pretty much immediately after Susan Rice made the rounds saying that he served with honor back in June 2014.  I think blaming their anger on a guy who nobody thought would be president until November 8, 2016, lacks factual support.
     
    And, to presume that Stewie is talking about 10ish years because he was influenced by Donald Trump’s statements defies logic because if you don’t know him by now, you will never never never know him……Stew……Ooooaooooooie.

  15. John O'Connor says:

    I don’t get the whole mitigation argument.  If the idea is that the President’s comments have already inflicted unwarranted opprobrium on Bergdahl, isn’t the right jurisprudential lens pretrial punishment in violation of Article 13?  And wouldn’t the relief be a sentencing credit for pretrial punishment rather than reducing the adjudged sentence on the front end through mitigation?  Or is there a middle ground where pretrial comments aren’t severe enough to qualify as pretrial punishment but are harmful enough to qualify as mitigation?    

  16. stewie says:

    I don’t think this is an issue, but just to be safe…
     
    And Tinfoil, I thought and still think the appropriate resolution of this case was administrative separation.
     
    The next time I think, boy President Trump has a good idea there, will be the first, and a strong indication of mental illness or involuntary intoxication.

  17. John O'Connor says:

    I think this is a case where general deterrents has a role to play.  I also don’t think an admin separation is appropriate.  He ought to have a criminal conviction, a punitive discharge, and should go to the brig.  I don’t expect a long period of confinement because I do think the treatment by the Taliban is mitigating (even if self-inflicted), unless the MJ is really, really moved by the sentencing testimony as to injuries sustained searching for Bergdahl.  I’ll hazard a guess and say he gets a DD and one year.  

  18. stewie says:

    General Deterrence? You think if the vast majority of folks need to see him go to jail to know you shouldn’t leave the base in an area filled with terrorists? It takes…issues…to do this in the first place, and folks with issues aren’t very prone to being affected by general deterrence.
     
    I think general deterrence in this case is almost negligible as a sentencing factor. Arguing folks were hurt looking for him is by far more persuasive than general deterrence.

  19. J.M. says:

    General Deterrence? I thought General Abrams was the convening authority?
    I can say that there is a positive effect on Soldiers by this going to court martial. Nobody thinks anyone will do what he did (nobody thought anyone would do what he did before it happened), but there are ‘problem children’ in the military who think that they can jump the chain of command with impunity, while also making disrespectful statements and/or disobeying orders. Berghdahl may be the extreme example of this, but every time the military treats someone with ‘snowflake syndrome’ (and that’s how most of us in the ranks see him) with kid gloves, it encourages others to act the same way.  
    No offense intended to anyone here, but I think most of you perceive the situation as a lawyer first (as you should), not as a Soldier or leader. I’ve posted before my skepticism (not worded very eloquently, I admit) that maintaining good order and discipline too often takes priority over promoting justice, but as a NCO, the judge is appearing to to the best job balancing both as he can. 

  20. stewie says:

    Well J.M., a “leader” probably doesn’t let a guy who was let go from the Coast Guard for mental health reasons into the Army. A “leader” probably doesn’t take such a guy overseas. While they dont rise to the level of excusing his conduct legally, his mental health issues were a wee bit more than “snowflake syndrome.” Again, who is going to be encouraged to leave a base in the middle of a terrorist area? I perceive the situation holistically. A mentally troubled man who shouldn’t have been on active duty in the first place did a really dumb thing and paid a really heavy price for it. Not just in the fact that he was tortured and held captive for five years, not just that his military career is over, not just that he is looking at possible jail time, but he is a national pariah.  He’d be better off if he were a garden variety pedophile. The rest of his life is misery and probably poverty.

  21. Hammer Bun says:

    stewie, BB won’t be miserable or poor.  First off, he looks just fine in the photos I’ve seen of him walking into the courthouse.  And he’s going to be rich after some libtard Hollywood type gives him a few million buckaroos for his story.  Meanwhile, some of the brave men who looked for his sorry ass are crippled for life.

  22. Concerned Defender says:

    A few points.
    1.  As someone mentioned above, BB has become a political hot potato with the anti-Trump crowd now championing BB as part of their “never Trump” movement. Just read the anti-Trump slant on the leftist media headlines.  In the eyes of the “never-Trumpers” BB did nothing wrong and in their fantasy Trump is to blame.  THAT is a mental illness.  Trump has literally done NOTHING on this case and wasn’t even POTUS until I believe post-referral.  If you are in this camp, you have a mental illness.
    2.  As for BB being a way to strike at the Obama administration, I absolutely agree but only in part.  There is also real substantive hatred for BB.  As for politics, not because of BB’s conduct; instead because the Obama admin handled this so poorly.  They held a ******** Rose Garden celebration for, what we now know is a man who committed and has pled guilty to two serious crimes that put Soldiers in harms way and got several severely injured and cost the US tax payer untold millions of dollars, and resulted in freeing 5 top level terrorists.  None of that is disputed.  Think about that for a moment.  Parading around a war criminal and calling his service honorable and doing victory laps, politicizing this event, was so  upsetting to many combat vets like myself.  I personally know vets who were impacted from day 1, and they hate BB to the core.  
    3.  I don’t believe Trump’s comments were or are pre-trial punishment or proper mitigation.  Mr. Obama called me names, insulting my beliefs from time to time.  Where’s my reward or compensation?  Mr. Obama used the NSA and IRS and the ATF as weapons against conservatives.  Where’s my relief from pre-trial punishment silencing my 1A and 2A views.  See the point…  Mr. Trump’s comments had and have zero to do with the BB case from a military justice foxhole.  Folks hated BB long before Trump came on the scene, and BB was rescued, preferred to trial and referred to trial before Trump became POTUS.
    4.  I’ll reserve judgment on the Defense strategy, but it is puzzling.  It might work out for them in the end.  Perhaps they were banking on a Hillary election and continuation of the Obama era, or perhaps they were banking on a pre-trial pardon and held out.  Both were fairly reasonable expectations.  But they squandered a trial under the Obama admin and perhaps a heavy conviction then would have resulted in a Manning-type pardon.  Instead they played the long game with ten motions doomed for failure.  I don’t know if an early guilty plea deal would have been possible, but when you fight every motion and made the government earn their conviction, deals are probably off the table in the end, as we see here.  If BB gets a light sentence, job well done on the defense part.  If, as I suspect, BB’s sentence is in the 1-3 decade range, I suspect a fast trial and securing a decent deal early on sans 10 motions would have been the wiser COA.  It will be very interesting to see how this plays out as the MJ crafts the right sentence.
    5.  Deterrence. People act rationally and in their own self interest.  It’s a simple psychological and sociological principle.  I’m skeptical of lawyers who don’t understand the general deterrence argument.  If society (in this case the military) sees no real consequences for behavior, that behavior increases.  It is also how people/behavior are “controlled” – taxes, consumerism, justice, college grades, and so forth.  People gravitate toward beneficial activities and away from consequential activities.  In any work environment you can see behaviors change on the micro-economic scale based on the leniency or sternness of the leadership.  We’ve all experienced it.  E.G. getting up in early and being in formation at 0600 is not fun, but it’s better than being late and the penalties that follow.  But if there are no consequences, folks stop doing the right thing.  Same with more serious crimes.  BB naively didn’t “get” that there would be serious consequences to just walking away.  If we didn’t have punishment as deterrence crimes would increase.  
    There is so much seriousness about this case that I believe it warrants a commensurately serious sentence, measured in decades and including a DD and forfeiting the windfall of pay he received during the commission of his crime.  I’m looking forward to reading the ruling. 

  23. tinfoil wars says:

    Concerned defender, you’re going to find this hard to believe, but there are many people who think BB is a mentally ill, terrible Soldier, the Rose Garden ceremony was a terrible idea, and that President Trump’s statements about BB were disgraceful. They also might think that if not for the five years in Taliban captivity, a court-martial might be appropriate.
    I also recommend not using the David St. Hubbins method when reading deeply partisan “news” websites. 

  24. stewie says:

    If the guy were not mentally ill (again not enough to remove legal culpability) and had not spent five years in Taliban custody. I’d give him the normal year for desertion PLUS additional time for it being in a combat zone, etc.

  25. K Fischer says:

    I’ve seen David St Hubbins in concert, but I’m unfamiliar his method.  Please enlighten me as to what this method is.

  26. DCGoneGalt says:

    There is a purpose to giving a sentence for desertion when someone CONUS or in a safe location OCONUS just ups and leaves and goes about their life after shirking their military obligation.  In the case of anyone in an AOR like Afghanistan you know what already serves the purpose of general deterrence?  The Taliban and the savages that the United States is engaged against.  How in the hell would giving him years of confinement in Leavenworth serve as any more of a deterrent than a half-decade cultural enrichment experience in the Hotel Taliban? 

  27. BCD says:

    Is there reason people just ignore 4-5 years ignore the fact that he spent 4-5 years in Taliban confinement and was probably tortured and raped? People like to act tough and virtue signal their beliefs with Bergdahl….

  28. tinfoil wars says:

    Sir David St. Hubbins (GBE): “I believe virtually everything I read, and I think that is what makes me more of a selective human than someone who doesn’t believe anything.”

  29. stewie says:

    BCD
     
    1. They don’t believe he was actually tortured and that he’s really one of them. After all, why didn’t they kill him (even though there are multiple cases of the Taliban holding American hostages for a long period of time and then releasing them).
    2. They don’t think it erases out their belief that he is directly responsible for multiple Soldiers getting injured looking for him.
     
    The former is silly, the latter has merit and would be the only reason he gets a significant sentence.

  30. SnowflakeEnder says:

    Well, stewie, I’ll guess we’ll see how bad he got tortured when all the defense expert doctors testify on his behalf at sentencing…insert sarcasm font here…don’t hold your breath.  He looks strong as an ox and healthy…John McCain was tortured a little bit and can’t lift his arms. 

  31. stewie says:

    Exhibit A has spoken.

  32. DCGoneGalt says:

    Well, you’ve made it sounds so refreshing.  I am using my frequent flyer miles to take a rejuvenating trip to Afghanistan and stay with the Taliban for a few weeks.  I couldn’t find them on Couch Surfing.  Anyone know of any quaint B&Bs in the Jalalabad area?  The rivers and foliage in the tribal regions are just beautiful at this time of year.  I simply must do some leaf peeping and find a spa in the area.

  33. Mcguffin says:

    The same people saying he is fine, i.e. no mitigation, are the same people that make jokes about “Club Gitmo.”

  34. Vulture says:

    According to some news outlets BB was debriefed as to how he managed to survive that long.  Keeping people alive in captivity is very difficult as is a rescue mission in hostile territory.  Most attempts usually fail and I am surprised that the testimony as to rescue mission has gone the way it has.  That bit about him being a sympathizer doesn’t hold water.  Here is hoping that Saul was right about this case boosting public perception of the MJ system.

  35. Z. T. "Will" Saroyan says:

    You have to wonder whether the sentence will just be a punitive discharge.  Any guilty plea to desertion would almost certainly get that making the UCI issue (at least for the sentence) moot.

  36. Anon says:

    It’s interesting to hear the argument of sending a strong deterrent message to military members to not go AWOL like BB.  The biggest deterrent message is not deserting in Afghanistan and being picked up by insurgence, since your odds of being killed are significantly high.  This isn’s like going AWOL from Macdill AFB in Tampa, FL.  I highly doubt any deployed troop that was like thinking of deserting is not going to look at this case and say “I was thinking about it, but I don’t want be court martialed like Bergdahl.”  It’s more of “I don’t want to die from either either the elements or being captured and killed.”

  37. k fischer says:

    Anon, 
     
    That “no need to deter Joe from deserting while deployed” is all fine and good with the lawyers, but I do believe that it is lost on your average Company Commander, 1SG, Platoon Sergeant and Squad Leader who deal with stupidity day in and day out who had to memorize “I will guard everything within the limits of my post and quit my post only when properly relieved.”  They want Bergdahl to get the hammer, so they can use his sentence as a reminder of what will happen if you do something so utterly stupid.
     
    I think that the “this isn’t like going AWOL from McDill” is actually aggravating, i.e. we REALLY need to deter some idiot from going AWOL when surrounded by the enemy because the stakes are high with regards to OPSEC and recovery operations.  Yeah, there might not be many idiots who would do something like that, but the world is changing all the time.  Look at the females who scamper off to Syria to join ISIS and become sex slaves.  There were things that would have been unacceptable in the military when I was enlisted, yet today perpetrators get pardoned and become media darlings when they violate the law.  And, it only takes one captured Soldier to give up intel and cause other Soldiers to die. 
     
    So, rather than looking at what deters Soldiers, one might ask how dangerous is this conduct and how badly does it need to be deterred if someone considers doing it?

  38. stewie says:

    Really kf? I wasn’t always a lawyer, I was a squad leader back in the day and I cannot imagine I would say, see what happened to Bergdahl in any potential discussions about anything. I’d probably give my folks the benefit of believe that they are smart and sane enough to not go into terrorist infested waters as it were. This whole “stop thinking like lawyers” thing some folks are embracing is pretty silly for multiple reasons. First, because this is EXACTLY the area where you might want folks to “think like lawyers”…you know, folks trained to consider things like deterrence et al? Sentencing factors? Second, because it has that whole anti-intellectual, egghead, elite not a REAL American/Soldier baloney running through it.
     
    General deterrence is a pretty easy concept to understand. And if almost no one is doing it because almost everyone clearly understands that they could, ya know, die, from doing it, then you probably don’t need a lot of general deterrence. So, kf, are you saying the vast majority of Soldiers, or even a significant minority of Soldiers, or heck more than like 10 Soldiers total need a harsh sentence on Bergdahl lest they think they are free to frolic amongst the terrorists? Because those five years in captivity wouldn’t deter them?

  39. Matt says:

    So general deterrence is silly, because nobody would ever do what BB did? Didn’t BB do what BB did? So clearly somebody might do it.  Just because there are other bad things that can happen, doesn’t mean that there can’t be value added by signalling that the Army takes this behavior very seriously and will punish you appropriately for it.

  40. Anon says:

    Well I guess we should start having aircraft get defensive systems against sharks with laser beams.  Because there MIGHT be one shark out there with a laser beam.  If one person does it, is it really a trend?  Or is it just some random isolated incident of an idiot doing something stupid?  Sounds like general deterrence was and has always been working for the 99.9% of other service members.

  41. stewie says:

    BB doing what BB did is a big news item precisely because no one does what BB did, and the consequences of what BB did are really really terrible (and he is lucky he wasn’t killed quite frankly). No one said “general deterrence is silly.” General deterrence in THIS case is almost completely negligible as a sentencing factor because this is a fairly unique and unlikely to be repeated anytime soon offense.
     
    And Anon, ill-tempered sea bass are way more common.

  42. Saul says:

    http://abcnews.go.com/Blotter/bergdahl-soldier-walk-off-afghan-outposts/story?id=24053366

    “At least a dozen guys just walked off their posts” in Afghanistan since 2009 for a variety of reasons, said an experienced soldier, one of four Afghan war veterans familiar with the incidents who spoke to ABC News. The other sources estimated the number could be more than a dozen.
    The highly experienced combat veterans — whose deployments cover the entire Afghan campaign — said the significant incidents spanned a timeframe from when President Bush in late 2008 boosted conventional troop numbers in Afghanistan to well beyond President Obama’s early 2010 surge that added 30,000 more troopers to the fight.

    Now, that’s a dozen (or more) out of almost 1 million, or somewhere around 00.0012%.  make of that what you will.

  43. k fischer says:

    Stewie, 
     
    I think it’s easy for lawyers to wax ecstatic about how this case is not a fit for general deterrence because lawyers aren’t the ones who are going out on the patrol to look for the guy who goes AWOL in Afghanistan.  It’s the guys in his unit.  They are the ones who are pissed because they have to put themselves in harm’s way.  I’m sure they don’t want any more BB’s and would like the MJ to use everything at his disposal to deter anyone from pulling another BB.
     
    I am saying that BB’s desertion in the combat zone should be deterred more than some guy who goes AWOL from McDill because the stakes are higher.  I understand that the vast majority of Soldiers aren’t going to desert in the combat zone out of a sense of self preservation, however, for the one who is considering desertion in the combat zone, his conduct could have far worse ramifications and should be more greatly deterred through confinement.  
     
    Do you think general deterrence is almost completely negligible as a sentencing factor in Hassan’s (Ft. Hood) case?  That case was fairly unique and unlikely to be repeated anytime soon, wasn’t it?  And, who wants to be like Hassan?  Look, he’s paralyzed for the rest of his life!  That’s pretty mitigating, isn’t it?  What about the Sailor who does a backflip off the aircraft carrier causing the group to have to turn around to get him?  Doesn’t happen a lot because it is probably pretty painful and you could easily die.  Do you sentence him to significant confinement because of the aggravation of having to turn the group around, or do you sentence him, so maybe the next oxygen thief thinks about it a little harder?
     
    I think when one’s actions have serious foreseeable negative consequences, then deterrence is a factor.  Granted, there may or may not be other factors that are better used by the prosecution, and his confinement during capture will mitigate his offense.  But, to say that there is negligible general deterrence (your point) because it’s not like he went AWOL at MacDill (Anon’s point that I was addressing) doesn’t really address the full consequences of his actions.   

  44. Guilty Bystander says:

    As the great poet of UCI once wrote: I’m shocked and surprised when anyone suggests… that the puppetmaster influences the marionettes.
    (I got a dollar to bet that Mcguffin is the nom de plume of Dwight Sullivan. You can’t keep a good blogger down. Any takers?)

  45. stewie says:

    Plenty of lawyers have “gone out on patrol” or been “squad leaders” or any other salt of the Earth regular guy stuff you want to list that isn’t particularly relevant to a legal concept like general deterrence or sentencing factors. A substantial percentage of the JAG Corps is either FLEPs or prior service. May not be a majority, but it’s a substantial minority.
     
    I don’t care if the guys in his unit are “pissed.” And their being pissed is not relevant. Nor would it be relevant if they were all feeling good vibes about him either.
     
    As a matter of fact, yes, general deterrence is pretty much not a factor in Hassan’s case either. Specific deterrence absolutely is. But there is ZERO evidence that the death penalty has a quantitative general deterrence effect, in fact, most of the available evidence shows the opposite (Brutalization Effect).
     
    General deterrence sometimes applies and sometimes doesnt to varying degrees. Addressing the full consequence of his actions isn’t general deterrence. It’s specific deterrence, or it could be retribution, or plain old punishment. Certainly if the judge determines it is directly relating to or resulting from his misconduct then the consequences (i.e. Soldiers injured) will factor in but that’s also not general deterrence.
     
    Saying general deterrence is not a factor isn’t even saying “he should get a light sentence.” You can easily make the argument that general deterrence is not a factor yet advocate for decades in jail based on other sentencing factors.
     
    General deterrence is most effective in areas where people are more likely to commit a crime. Where the crime has some attractive quality. Examples include drug use, “moral crimes,” sex crimes, etc. Things where you really need to send a signal to dissuade others from doing it. This is not a case where you need to send a signal to dissuade anyone else.

  46. Concerned Defender says:

    Failing to accept and understand General Deterrence arguments demonstrates not that it doesn’t work – it instead demonstrates the inability of the arguer to get the concept.  GD is a fundamental principle of any law and order and operates on probably the most fundamental psychological principle of self-interest.
    That some don’t understand it is an indictment not of GD but of their own mental horsepower or lack of the right Pscyh courses.
    I guarantee that punishment factors into nearly all decision making, even bad or mentally corrupted decision making.  And while it may not influence those who do the bad behavior IN SPITE OF knowing the consequences – like our hero BB – it ABSOLUTELY DETERS at least some others who fear the consequences. 
    I guarantee lots of Soldiers don’t steal, go AWOL, or tell their boss to go F himself, or commit an assault or desert their unit somewhat or entirely due to the possible consequences. 
    How many times have you been in a situation where you’d love to speak your mind to a Commander, maybe kick some teeth in, or just not bother going to work, or not file your taxes, etc. but did so ANYWAY because there are severe consequences for failing to comply with the law?

  47. Concerned Defender says:

    The fact there are so few Desertions in theater and Misbehavior is a combination of DETERRENT factors.  UCMJ and also enemy capture, and also not really many places to escape to.  These are Deterrents.  The fact BB ignored them doesn’t mean they are ineffective to the population as a whole. 
    A heavy sentence reinforces these Deterrents.  A light sentence will be viewed as a reward for bad behavior and undermine the UCMJ and Good Order and Discipline.

  48. Texas Balls says:

    Preach, CD, preach!!!  These micro-nads will get it one day,,,,hopefully.

  49. k fischer says:

    As a matter of fact, yes, general deterrence is pretty much not a factor in Hassan’s case either. Specific deterrence absolutely is

     
    Stewie, I think you need to go back and read the definition of general and specific deterrence.  General deterrence is when you punish a specific individual to serve as an example to others about what generally could happen to them if they committed the same crime.  I would say that the higher the aggravation of a crime gets correlates to a higher need for general deterrence, so that nobody else commits the crime, regardless of the dozen or so people out of a million who might commit the act.  And, if everyone is doing it, then that is another separate consideration and reason for general deterrence in sentencing.  You might have a very minor criminal act, but since everybody is doing it, you need to send a message with a stiff sentence.
     
    Specific deterrence is when you punish someone with the intent of deterring that specific person who committed the crime from committing the crime again.  In Hassan’s case, I don’t think you have to specifically deter a paralyzed man from committing mass murder in a terrorist act again.  His physical disability pretty much does that.  And, I think that general deterrence is a factor in Hassan’s case.  Perhaps not the best sentencing philosophy, but still a factor. 
     
    Now whether you believe that deterrence is actually an effective sentencing philosophy is a different matter.  But, I think there a plenty of people who disagree with you, and might I add while you are rolling your eyes as you read this, are not idiots and/or Trump supporters.

  50. k fischer says:

    From this article, it appears that the Government asked for only 14 years, and the MJ will announce Bergdahl’s sentence on Friday.  

  51. stewie says:

    Doesn’t take feet to fire a gun kf. His arms and hands still work is my understanding. And Google is your friend. PLENTY of studies showing no deterrent effect in the death penalty. None. Zero. Nada. Zilch. In fact, the “brutalization effect” suggests there is a reverse deterrent effect. Now, I’m less inclined to think that study is accurate and isn’t more about correlation than causation, but the point remains is general deterrence and the DP isn’t an academic exercise where folks have different opinions and gosh who knows…no, folks have studied this stuff.
     
    I said absolutely nothing about not believing that “deterrence is an effective sentencing philosophy.” In fact, I typed: “General deterrence sometimes applies and sometimes doesnt to varying degrees.” And then I typed “General deterrence is most effective in areas where people are more likely to commit a crime. Where the crime has some attractive quality. Examples include drug use, “moral crimes,” sex crimes, etc. Things where you really need to send a signal to dissuade others from doing it. This is not a case where you need to send a signal to dissuade anyone else.”
     
    So before you tell me to go read up on general v specific deterrence, perhaps you should, you know, read the comment you are responding to, instead of the comment you wish you were responding to.

  52. stewie says:

    If the GOV is only asking for 14 years, then it strikes me that there must have been something in the Stip that the Defense just could not agree to, because a 14 year cap is pretty reasonable (and I’m guessing the offer was lower than that).
     
    It would be pretty surprising if the MJ gives him decades now if the GOV only thinks it’s worth 14 years. Single digit years is looking more and more like the worst-case scenario.

  53. (Former) ArmyTC says:

     stewie, there was no PTA and no stip of fact.

  54. k fischer says:

    I didn’t say that you didn’t believe that deterrence is an effective sentencing philosophy.  I know that you said general deterrence works in some cases, but it seems that you limit this sentencing philosophy to those cases where the acts making up the crimes were so fun and attractive that other people would want to commit them. 
     
    What I was saying is a simple point that if the adverse consequences stemming from a crime are so bad that general deterrence will be a factor even if only a few people might do it.  You would say that general deterrence either is not a factor or a negligible factor.  And, I think that in this case, there are plenty of people who disagree with you about that.
     
    And, I didn’t say anything about the deterrence effect of the death penalty……although, I will say that if Hassan is put to death that he will be specifically deterred from committing those acts again, but I don’t think that’s what they mean by specific deterrence.
     
    But, one thing we can agree on is that I don’t think the MJ is going to give BB more than 14 years, particularly when there is no deal and you have this UCI issue hanging around.

  55. k fischer says:

    (Former) Army TC, 
     
    Are you saying that there was no negotiating for a possible PTA prior to the naked plea?  If so, then there should be a different term for that where the Accused just goes in and pleads guilty without even thinking about his own protection.  Like “Swimmer Naked” or “Skeleton Plea” or something indicating that the person was more than merely naked.

  56. stewie says:

    Except we’ve found through studies that it is not always the case that if you make punishment “so bad” for an offense that, that fact alone makes it less likely that people will commit an offense (general deterrence); in fact, we know in some circumstances there is a sweet spot where any more punishment has zero deterrent effect. And we suspect in other circumstances, really bad punishment (i.e. the death penalty) could actually negative affect general deterrence.
     
    ArmyTC, so you are saying there was zero negotiation at all? That seems crazy to me if true. On both sides.

  57. J.M. says:

    Is there any documentation of the ‘mental health reasons’ Bergdahl was discharged from the Coast Guard for? All I can find is confirmation that he got a general discharge from the Coast Guard 2 years prior to joining the Army. And despite inter-service rivalry and jokes about each others Basic and Boot, Coast Guard Boot was probably the hardest thing he’d done in his life up until then. Plenty of people can’t hack Basic/Boot the first time they try. They go home, grow up or get in shape, and try again successfully. Until there’s documentation of why he was sent home, I’m not going to believe some halfassed internet rumors or statements made by family and friends that he was sent home for ‘mental health reasons’. 
     
    And I stand by my ‘snowflake syndrome’ remark. Read the letters he wrote prior to doing his walkabout and listen to his podcats. This is a person who constantly thought that he was always right and his leadership was always wrong. A PRIVATE has no business at all questioning or second guessing his NCOs or Officers or his units way of doing business downrange (not excepting illegal orders, but the military seems to have really screwed up ethics training for new Soldiers on what is an illegal order and what to do about it compared to when I was a PFC). The fact that he did so on a regular basis, and refuses to take any responsibility for what he did (until his sentencing hearing, where he gave a apology speech that reads about as sincere as a celebrity being caught with a hooker and bag of coke for the umpteenth time), make him look to the layperson like a Snowflake. Now, as a NCO (retired now, according to my beard), snowflakes are a PITA. People here say that nobody would do what he did. I’ve seen behavior that suggests otherwise. I’ve seen Soldiers get into screaming matches with their NCO and take off and walk away right out into the middle of the desert at NTC (most just leave post or work and don’t answer their phone for a day or two, which means we have to pull NCOs from their duties to go track them down and make sure they’re ok). There’s even a term for it now, some of you may be able to guess who it’s named after. 
     
    Bergdahl may be an extreme example, but his early behavior and is not and a heavy sentence is a deterrence to others. He pled guilty to serious crimes, there needs to be a serious sentence. I’m not completely heartless and I do think his time as a POW should be considered a mitigating factor.  If it were up to me, I’d say give him 10-14, and count the time he spent as a POW as a 1 to 2 conversion credit towards any prison time. 

  58. k fischer says:

    A PRIVATE has no business at all questioning or second guessing his NCOs or Officers or his units way of doing business downrange

     
    When I was downrange in early  ’91 as a SPC, I had an E6 who seemed to pick me for every stinking detail there ever was while the other members of the E4 mafia in my tent napped.  He admitted as much when he said, “But, you have the least time in grade” notwithstanding that my buddy from AIT arrived and was promoted one month after I did to the unit.  But, that mattered little because it was ridiculous that I did everything because 9 other people of the same rank were promoted a few months ahead of me.  And, I told him as much.
     
    And of course I went on because back then I did not have the internal filter I have today….so, I told him that I was also sick and tired of hearing how he was smarter because we aren’t as old as he is.  I informed him that being twenty years older than me means one thing to me: “You’re going to die twenty years before I do.”
     
    He took me aside and told me that the real reason he detailed me so much was because I did what I was told and he knew the job would get done, but he would try to get the others to participate.  I’m very fortunate that he had the patience of Job because I really deserved at least a Summarized Article 15 for disrespecting that NCO.