No. 17-0069/AR. In re Robert B. Bergdahl, Petitioner. On consideration of the petition for extraordinary relief in the nature of writ of mandamus and Petitioner’s motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal and motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc, it is ordered that said motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal is hereby denied, that said petition for extraordinary relief is hereby denied, and that said motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc is hereby denied as moot.
Maybe the timing of these developments is just a coincidence, but from one news report (here) we learn that trial in the Bergdahl case will be delayed until May because:
Prosecutors filed a motion in October requesting a trial delay. They cited the pace at which they’re able to get approval to give the defense classified evidence as a main reason for the delay.
And from another news report (here) we learn that the defense is positively giddy because it sees the election of Donald Trump to the presidency as an uncurable error:
“We’re deadly serious about seeking a dismissal,” Eugene R. Fidell told The Fayetteville Observer on Wednesday. “There’s never been a presidential candidate who singled out a military member for this kind of abuse before. It’s never happened.”
Deadly serious is an unfortunate choice of words considering that the classified evidence addressed first report includes evidence of soldiers who were allegedly injured during search and rescue missions for Bergdahl:
Former Army Spc. Jonathan Morita also testified Monday, according to the AP, describing when an unexploded rocket-propelled grenade smashed into a rifle he was holding with the force of a hammer onto his hand.
“I looked at it, and I thought, ‘That’s going to hurt in the morning.’ I didn’t feel it. Too much adrenaline,” he testified, according to the AP report.
Defense attorneys have said it was the Taliban, not Bergdahl, who caused the injuries.
And then there’s this (from the second news report):
[Retired Army JAG and law professor Victor M.] Hansen said the bigger challenge for Bergdahl’s lawyers may be to overcome the intense pretrial publicity. Bergdahl was the subject of the second season of a popular podcast, “Serial,” that played tapes of an interview Bergdahl did with a filmmaker explaining he walked off his base to cause a crisis that would catch the attention of military brass.
Deep in the category of it’s never happened before is Bergdahl’s decision to talk with filmmaker Mark Boal for long enough to produce 25 hours of recorded conversations. Conversations that were shared with the Serial podcast (presumably with Bergdahl’s permission). Conversations that include some incredibly damaging statements, as discussed in our #8 Military Justice Story of 2015.
But Bergdahl has a Trump card.
Yesterday Sergeant Bergdahl filed a petition for extraordinary relief in the form of a writ of mandamus at CAAF. The petition has docket number no. 17-0069/AR and is available on the Bergdahl docket website, here. A searchable version is available here.
The petition asserts:
This original mandamus petition raises an important question that directly implicates public confidence in the administration of justice: is it lawful for the chairman of the Senate Armed Services Committee (SASC) to publicly brand a specific accused as “clearly” guilty of a serious offense and threaten to conduct a hearing if he is not punished at a court-martial?1 Without addressing due process, the military judge found no violation of Article 37(a), UCMJ.2 The U.S. Army Court of Criminal Appeals failed to act in a timely fashion on a mandamus petition seeking to overturn that decision. See § II infra.
The circumstances require this Court to exercise its original-writ authority under the All Writs Act, 28 U.S.C. § 1651 (2012), and defend the military justice system from flagrantly illegal interference by the single most powerful member of SASC, John S. McCain.
Pet. at 1. The relief requested is “a writ of mandamus dismissing the charges and specifications and in any event limiting the punishment that may be adjudged to No Punishment.” Pet. at 4 (capitalization in original).
I previously addressed this issue, and reasons why the relief requested is unwarranted, in this post.
I believe that this is Bergdahl’s sixth trip to Judiciary Square, but who can really keep track at this point.
The professional responsibility systems for military lawyers – administered separately by each Judge Advocate General – are notoriously opaque. However, this news report related to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), provides a rare glimpse into one inquiry:
The Washington Post revealed that [Navy judge advocate and appellate military judge Commander] Rugh had given false information to a board of officers deciding whether a Marine he’d prosecuted for sexual misconduct should be expelled from the service.
Now his future — and potentially dozens of criminal appeals he’s overseen — is being threatened by the fallout from the flawed investigation into Marine Maj. Mark Thompson, a former instructor at the U.S. Naval Academy convicted of having sex with two female midshipmen.
Last week, Rugh testified at an ethics hearing before a senior officer probing whether he lied under oath in 2014 about two witnesses, his attorney said. Thompson is accused of lying to the same board and faces a second court-martial because of The Post’s revelations about his case.
The claim that CDR Rugh lied arises from the Board of Inquiry convened to determine whether Major Thompson should have been separated from the Marine Corps after he was convicted of indecent conduct and fraternization with junior officers and sentenced to confinement for two months and a fine of $60,000. In a surprise move the Board decided not only to retain Major Thompson on active duty, but also determined that he did not commit any misconduct (despite the fact that the court-martial conviction is treated as conclusive proof of misconduct).
CDR Rugh was the lead prosecutor at Major Thompson’s court-martial, and he testified to the Board (via telephone) about the facts of the case. In particular, CDR Rugh told the Board that his prosecution team talked to family members of one of the junior officers and corroborated the allegation that the officer was at Thompson’s home on a particular night. This was news to Thompson’s defense counsel, and they later raised it as an issue of non-disclosure in an effort to reverse Thompson’s convictions.
In the exposé that kindled the current prosecution of Major Thompson, Washington Post reporter Jonathan Cox spoke to some of the family members that may have been contacted by the prosecution team. They told him that they were never contacted by the prosecution. That revelation led to the claim that CDR Rugh gave false information to the Board.
The Navy’s professional responsibility system is detailed in JAG Instruction 5803.1E (available here). Complaints involving professional misconduct follow a five-step process: (1) Initial screening to determine if the complaint, on its face, establishes probable cause to believe that the rules were violated; (2) Initial review by the Rules Counsel to determine if the complaint is of a minor or technical nature that may be addressed summarily; (3) An ethics investigation if the complaint is not dismissed or resolved summarily; (4) Review of the result of the ethics investigation by the Rules Counsel, and; (5) Final action by the Judge Advocate General.
The news report suggests (update: and this version clearly states) that the complaint against CDR Rugh has reached the ethics investigation stage. However, it provides the following additional details:
Rugh’s attorney, retired Rear Adm. Christian L. Reismeier, wouldn’t comment on what his client said at the ethics hearing. But he denied that Rugh, 44, had intentionally misled the board. In an email, Reismeier called the alleged misstatement an “honest mistake” based on information that Rugh believed to be true at the time.
Alas, the Golden CAAF II remains without a new home as the Supreme Court denied what was the best prospect of a certiorari grant in a Mil Jus case in some time. Yesterday’s orders list (here) denied certiorari in United States v. Akbar, No. 15-1257. Going to be a long cold winter without Mil Jus at SCOTUS again. At this rate, the Golden CAAF II will be a full grown steer (or would it be a cow, not sure we’ve determined gender) by the time it finds a home.
Two recent developments in the ongoing case of Marine Major Mark Thompson (CAAFlog news page), which is currently scheduled for trial in January (according to this news report), are worthy of mention.
The 45-minute audio recording of The Post’s interview with Thompson, which the newspaper published online in July, is part of the military’s case set to begin in January.
At a preliminary hearing at Marine Corps Base Quantico on Tuesday, Thompson’s attorneys asked a military judge to order The Post to turn over the original recording and contemporaneous notes from the reporter.
“Our contention is that there are portions of the interview missing,” Thompson attorney Kevin B. McDermott said in the courtroom in the basement of Lejeune Hall. “If the government intends to use my client’s statements against him, we believe we should have access to it.”
Second, as reported here, Thompson’s attorneys are asserting prosecutorial misconduct in connection with the immunized statement of another Marine, Major Pretus, who will be a witness against Thompson:
In a motions hearing Sept. 13 at Marine Corps Base Quantico, Virginia, defense attorney Navy Lt. Clay Bridges said the three attorneys for the prosecution engaged in misconduct by not allowing Pretus to confer with an attorney before signing the immunity offer, made by Vice Adm. Walter E. “Ted” Carter, superintendent of the Naval Academy.
At the time of the offer, Pretus made a lengthy statement in which he described his friendship with Thompson, the sexual encounter with a midshipman, and phone calls between the two on another night, in which he alleges Thompson revealed his intent to have sex with two drunken midshipmen then at his house.
“The actions of the trial team have resulted in a different testimony,” Bridges said in Wednesday’s motions hearing. “And we will never be able to get the testimony back.”
It’s not clear how Pretus’ testimony might have been different if he had been allowed to confer with an attorney, as he requested.
First Presidential “Debate” Features MilJus – A Glaring Factual Inaccuracy About MilJus. But MilJus All the Same
[First I know it wasn’t a debate, so don’t hit send on that hate mail you are drafting]
From the Republican Presidential candidate, per NPR (here):
The Pentagon has to set up a “court system within the military,” . . . One today “practically doesn’t exist … Right now, part of the problem is nobody gets prosecuted. You have reported and — the gentleman can tell you, you have the report of rape and nobody gets prosecuted. There are no consequences. … Look at the small number of results. I mean, that’s part of the problem.”
So what the heck has the Mil Jus system been doing for the last five years? Because all I see them doing is dealing with the issue of sexual assault.
So this post squarely falls into the category of “Rants” because I just can’t take the fact that we have a Presidential candidate that has absolutely no accountability for rolling out a blatant falsehood. The Republican candidate is the political equivalent of Tommy Flanagan on this issue. It is not like the numbers aren’t available either. See here and here and here . . . and that’s just 2015 numbers, you get the point. So here are the numbers:
Of the 6,083 initial complaints filed last year, about 1,500 were “restricted,” meaning the victim was a service member who reported the assault but refused to participate in any criminal investigation and only sought healthcare and victims’ support services.
In 2015, military criminal investigators reviewed 4,584 “unrestricted” reports from victims who were willing to participate in a potential prosecution. . . .
After completing investigations, 2,783 cases were sent to military commanders.
. . . .
Commanders launched court-martial proceedings against the alleged perpetrator in 926 cases. Among those, 159 were closed because the alleged perpetrator resigned from the military, and 111 were closed because the case was dismissed in pretrial proceedings.
Of the 543 cases that ultimately went to court-martial, 130 resulted in not-guilty verdicts.
Of the 413 troops convicted at court-martial, 161 resulted in charges unrelated to sex assault.
In 254 cases, a service member as convicted of a sexual assault-related offense.
[edit: So if the candidate is going to lob out this “nobody gets prosecuted” statement, what’s his solution? That’s what campaigns are about.] Let’s look at what the conservative Heritage Foundation and friend o’ CAAFlog, Cully Stimson, said about removing command authority as a way to achieve better success in sexual assault cases in the military:
The facts also do not support this argument. None of our allies has a caseload as large as the armed forces of the United States. Despite this caseload, our current U.S. system remains more effective than those of our allies. For example, the Army installation at Fort Hood alone has a higher conviction rate than Canada Defense Forces and is equal to the Israeli Defense Force in courts-martial for sexual assault offenses. Most of America’s allies reported that removing the authority to prosecute from the chain of command has slowed prosecutions, and they saw no increase in the number of convictions under the new system.
Article here. Is that what this candidate is proposing? Please someone hold this candidate accountable when he just speaks untruths or at least force him to posit a solution to the problem.
Having discovered that General Abrams – the convening authority in the Bergdahl case – failed to review matters submitted by the defense before referring the case for trial by a general court-martial, and also that the General destroyed letters sent to him regarding his referral decision, the defense motion to replace General Abrams as convening authority (previously discussed here) seems to have found some traction.
Stars and Stripes reports here that General Abrams has been ordered to testify by telephone.
In a motion filed yesterday in the Bergdahl case and available here, Sergeant Bergdahl’s defense team seeks to disqualify General Abrams as convening authority for three reasons.
First, because General Abrams served as the principal military assistant to the Secretary of Defense before his current assignment, and was therefore involved in the Bergdahl search and recovery operations, the Defense asserts that he is a fact witness who cannot also serve as convening authority.
Second, General Abrams apparently did not consider the defense comments to the Article 32 preliminary hearing report. According to the motion:
When interviewed, [General Abrams] claimed that [the defense submission] was written for “the lawyers” and suggested that if the defense wanted him to read the submission, it should be written in “plain-speak.”
Mot. at 7. The defense calls this “preposterous” and asserts that it requires General Abrams’ disqualification and a new referral decision. Mot. at 7.
Finally, the motion asserts that:
GEN Abrams admitted having received over 100 letters about SGT Bergdahl’s case. These were addressed to him and sent through the mail. He said they spanned the full spectrum of opinion, and came from all types of people and on both sides of the case. When defense counsel asked to see the letters, GEN Abrams revealed that he had destroyed them by burning.
Mot. at 7 (emphasis added).
One can only hope that the General was not so reckless as to destroy the only copies of the letters (which, of course, were official records).
The defense also asks that any court-martial be prohibited from adjudging any punishment in the event Bergdahl is convicted. Bergdahl recently also sought this remedy in response to Senator McCain’s comments on his case (discussed here).
In a motion filed yesterday and available here, the defense team in the Bergdahl case (CAAFlog news page) asks that the charges against him be dismissed with prejudice or alternatively that the court-martial be prohibited from adjudging any punishment in the event he is convicted.
The basis for the defense request is the statement of Senator John McCain, current Chairman of the Senate Armed Services Committee, that:
If it comes out that [SGT Bergdahl] has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee …. And I am not prejudging, OK, but it is well known that in the searches for Bergdahl, after-we know now-he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter. We need to have a hearing on that.
Mot. at 6 (marks in original). The motion then asserts that:
It is difficult to imagine a more blatant threat to the fair administration of military justice than the one Sen. McCain uttered. That he never carried through on it – or hasn’t yet – is of no moment. The threat itself is the problem.
Mot. at 12 (emphases in original).
While McCain’s comment may require some corrective measure by the court-martial, it’s hard to see how granting either of the forms of relief requested by the defense would be anything less than an enormous windfall for Bergdahl (who functionally confessed to the desertion charge and then made numerous other damaging admissions to a journalist that were broadcast – with Bergdahl’s consent – by NPR in the Serial Podcast). The defense must have an awfully dim view of the intestinal fortitude of the Army leaders responsible for this case if it really believes that the mere threat of a hearing will necessarily and irreparably lead to unfairness in the court-martial proceedings.
The reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army leaders in the face of McCain’s threat:
After earlier this year substantiating its first case of reprisal against a sexual assault victim (see army Times here), various outlets reporting on the creation within the DoD IG’s Office of a sexual assault reprisal unit that will handle all complaints of reprisal against sexual assault victims. See Stars and Stripes here and Federal News Radio here. FYI, this was one of the recommendations of the JPP, that DoD IG handle all sexual assault reprisal investigations.
Season 2 of the popular NPR podcast Serial was about the Bergdahl case, and the source material for the podcast included recordings of post-recovery interviews between Bergdahl and filmmaker Mark Boal. Specifically, there are roughly 25 hours of recorded conversations (according to the podcast – link to episode transcript) discussing Bergdahl’s life, the reasons he left his unit, and his capture and captivity. Some of those recordings were played during the Serial podcast, and they included numerous damaging admissions by Bergdahl (some discussed here).
It’s unsurprising that Army prosecutors would seek to obtain those recordings are review them for additional evidence. Boal, however, is trying to prevent that.
In a case filed in the U.S. District Court for the Central District of California on July 20, 2016, Boal seeks to enjoin issuance or enforcement of a subpoena for the recordings. The case is Mark Boal et al. v. United States of America et al., docket # 2:16-cv-05407-GHK-GJS.
A copy of the complaint is available here. It argues, in part, that:
Issuance and enforcement of the Subpoena will irreparably harm Plaintiffs. Either Plaintiffs will be forced to reveal unpublished and unbroadcast segments of interviews gathered for news and public affairs reporting purposes, which include confidential information, or Plaintiffs will be subjected to contempt proceedings for their failure to do so. Disclosure will irreparably damage Plaintiffs’ ability to gather news and give sources and subjects confidence in their ability to keep materials confidential. Contempt proceedings will cause loss of liberty or property that is unwarranted and unconstitutional. In either event, Plaintiffs – third parties to the Bergdahl court martial – will be unduly burdened by the Subpoena and forced to expend substantial sums on counsel.
Complaint at 6-7.
The Washington Post has made a significant disclosure in the ongoing case of Marine Major Mark Thompson (CAAFlog news page), who faces a second general court-martial after he invited the Post to look into his case: It published the audio of the final interview between Thompson and the Post reporter.
During a 45-minute interview in January — previously excerpted and now published in full online — reporter John Woodrow Cox showed Thompson copies of the text messages he uncovered and repeatedly asked Thompson why he had lied about Stadler’s late-night visit to his Annapolis home during her graduation weekend.
“I simply had to,” Thompson said in the recorded interview. “When they were coming after me for 41 years, I can’t begin to say, you know, how terrifying that is.”
If he’d been convicted of the rape charge, he might have faced a sentence that long. During the interview, Thompson continued to maintain that he had not had sex with either woman and offered more explanation for not divulging the text messages.
“If I were to say, acknowledge that I thought they were flirtatious, that moved me on the scale closer towards, well, it was probably a relationship,” he said. “So I avoided anything that looked like it could be unduly familiar or flirtatious.”
When Cox again pressed Thompson on why he’d lied, the Marine asserted that he was “never questioned” about his final encounter with Stadler. The reporter reminded Thompson that he had been asked about it both at the administrative hearing and “multiple times” by The Post.
“I simply wanted to distance myself,” Thompson said, “from anything that would look like there was more familiarity than there was.”
The audio is somewhat difficult to understand because of background noise.
The article also discusses one of the charges against Major Thompson: that he engaged in conduct unbecoming in violation of Article 133 by misleading the Post reporter.
Note: Later today I will be part of the a free webinar on the Bergdahl case presented by the Young Lawyers Division of the American Bar Association. You can register here.
The Army’s prosecution of Sergeant Robert Bowdrie (“Bowe”) Bergdahl (CAAFlog news page) for desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99, was our #8 Military Justice Story of 2015.
As the case progresses many wonder why Bergdahl faces prosecution after nearly five years of brutal captivity in the hands of insurgents. The facts of his capture are relatively undisputed – in a moment of severe naivete (or narcissism) he walked away from his combat outpost and into the Afghan wilderness – and the subsequent half-decade of maltreatment he suffered is undoubtedly a harsh price to pay for his terrible decision. Yet Bergdahl faces a general court-martial and the possibility of confinement for life without the possibility of parole. Why, one wonders, would the Army subject him to such a court-martial?
It’s because the Army has no choice.
According to this CNN report, PFC Manning – who pleaded guilty to some offenses and was convicted of others in connection with the mishandling of classified material, and who received a sentence that included confinement for 35 years – was hospitalized yesterday after an apparent suicide attempt.
Readers may recall that Manning bitterly protested being placed in a suicide watch status while in pretrial confinement (some discussions here and here and here), and received 112 days of extra credit due to the conditions of the pretrial confinement.