The Army CCA orders the Government to show cause why Sgt Bergdahl’s writ petition should not be granted
Order available here.
Order available here.
Sergeant Bergdahl has filed another petition for extraordinary relief – this time seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture.
A copy of the petition is available here.
According to the petition, during last week’s public Article 32 preliminary hearing, the investigative report and a transcript of MG Dahl’s interview of Bergdahl were submitted to the preliminary hearing officer. Sergeant Bergdahl wants to make these materials available to the public. However, Sergeant Bergdahl and his counsel are all subject to a protective order prohibiting them from releasing the materials (a copy of the order is attached to the petition; pages 89-90 of the PDF).
The petition also reveals that Sergeant Bergdahl’s counsel sought a advisory opinion from the Army’s Professional Responsibility Council regarding the ethics of releasing these materials in violation of the protective order. The request for the opinion is provided as an attachment to the petition and states that:
The defense is asking the convening authority to clarify or modify the protective order to permit the defense to disseminate unclassified case documents such as the transcript of SGT Bergdahl’s interrogation and MG Dahl’s executive summary. The defense wishes to be able to disseminate both of those documents at such time as they are marked in evidence by the preliminary hearing officer. This is important as a matter of affording SGT Bergdahl a fair hearing in the court of public opinion, since the government’s live witnesses’ testimony will be heard by the numerous news media representatives who are expected to attend the preliminary hearing, whereas mere documentary evidence will not be accessible by them or other new media in real time. In effect, the public will have only the government’s side of the story, but not the defense’s, as part of the critical news cycle.
Pet. Ex. 6 at 5 (page 47 of the pdf). Astonishingly, the Professional Conduct Council refused to issue any advisory opinion on the matter.
While concern about the “court of public opinion” is a debatable (perhaps dubious) basis for relief from a protective order, the writ petition presents the issue in a more fundamental context:
ONCE AN UNCLASSIFIED DOCUMENT HAS BEEN ACCEPTED IN EVIDENCE IN A PRELIMINARY HEARING OPEN TO THE PUBLIC, MUST THE CONVENING AUTHORITY RELEASE IT AND PERMIT THE ACCUSED TO DO SO?
There is strong precedent that an Article 32 must be open to the public and the press unless “compelling circumstances dictated a different result.” ABC, Inc. v. Powell, 47 M.J. 363, 366 (C.A.A.F. 1997). However, “every case that involves limiting access to the public must be decided on its own merits. Furthermore, the scope of closure must be tailored to achieve the stated purposes and should also be reasoned, not reflexive.” Id. at 365 (marks and citation omitted). The protective order in the Bergdahl case is very broad and seems to run afoul of this requirement.
Notably, neither the protective order nor the petition reference Mil. R. Evid. 506: The privilege for Government information other than classified information (one of the few privileges that I believe the Government should be able to assert under the UCMJ). That privilege applies at Article 32 preliminary hearings (in accordance with the new R.C.M. 405(h)). Yet it appears that the Government has not (yet) claimed that specific privilege.
The Government may well have the right to deny the public access to some of the materials that Sergeant Bergdahl wants to release, however I think there’s a very strong argument to be made that it has failed to narrowly tailor the restriction to meet only legitimate protective needs.
The Article 32 preliminary hearing into the charges against Army Sergeant Robert “Bowe” Bergdahl – who walked off of his Afghan combat outpost in 2009, was captured by the Taliban, and was held in terrible (and apparently tortuous) conditions until he was recovered in a prisoner exchange in 2014 – began last week at Fort Sam Houston in Texas. Here’s a roundup:
This Washington Post report by Dan Lamonthe provides an outline of the prosecution’s case against Sergeant Bergdahl. Mr. Lamonthe writes:
The officer who led the investigation of Bowe Bergdahl’s disappearance and capture in Afghanistan six years ago testified Friday that the Army sergeant said he walked away from his post as part of a plan to spark a search and get the attention of a general so he could express his concerns about his unit’s leadership.
Maj. Gen. Kenneth Dahl told a packed courtroom at Fort Sam Houston in San Antonio that Bergdahl felt the problems were so severe that they put his platoon in danger, but that Bergdahl’s perceptions were “completely off the mark.”
Associated Press reporter Juan A. Lozano has additional details here.
This CNN report provides an outline of the defense case:
When asked what in Bergdahl’s background might have caused his behavior in the military, Dahl said that the combination of growing up in rural Idaho on the “edge of the grid … being home-schooled” and the fact that he “internalized a lot of what he read” resulted in him having “idealistic and unrealistic expectations of people.”
Though Bergdahl was not duty-bound to comply with the investigation, he did and submitted to a day and a half interview. Bergdahl did exercise his right to silence at the start of the interview, Dahl said.
Dahl said he didn’t “believe there is a jail sentence at the end of this process.”
In this report the Christian Science Monitor quotes an anonymous official as speculating that this case will end with a request for discharge in lieu of trial by court-martial (known in the Army as a Chapter 10 – where it appears in Army Regulation 635–200 which governs the administrative separation of enlisted personnel). Notably, pursuant to paragraph 10-8.a of that regulation:
A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.
It’s also notable that in the absence of a request for discharge in lieu of trial, or a punitive discharge adjudged by a court-martial, Sergeant Bergdahl would likely be entitled to an honorable discharge. Chapter 3-7.a(1) of AR 635-200 states:
Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to AD or ADT or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted.
(emphasis added). Sergeant Bergdahl’s enlistment expired during his captivity, meaning that and end-of-obligation discharge now would include an honorable characterization of service. The big caveat to this is a finding that the captivity was due to his own misconduct; such a finding would exclude that time from the running of his service obligation, thereby extending his enlistment.
The Wright case is an Air Force sexual assault prosecution that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims. The Government appealed that abatement and the AFCCA reversed, finding that the military judge’s findings were incomplete.
Now Stars and Stripes reports here that the case will proceed to trial despite a finding of improper influence by senior Air Force officials:
Lt. Col. Joshua Kastenberg, in a July 30 ruling in response to a defense motion to dismiss the case against Airman 1st Class Brandon T. Wright, found that Lt. Gen. Richard Harding, formerly the Air Force Judge Advocate General, had improperly influenced the case or had given the appearance of doing so.
One such instance, the judge ruled, was recommending that Wright’s case be transferred to another court-martial convening authority for a do-over after the first convening authority, Lt. Gen. Craig Franklin, dismissed the case in the summer of 2013. Franklin’s dismissal came after an Article 32 investigative hearing at Aviano Air Base, Italy.
Such transfers are almost unheard of. It happened in the Wright case, Kastenberg’s ruling says, in part because Harding was worried that “the failure to have charges preferred against SrA Wright would enable Senator Kirsten Gillibrand to gain needed votes on a pending bill to remove commanders from the court-martial process.”
. . .
Yet none of these actions affected the current case against Wright, Kastenberg said, because all parties involved in the second investigation — at the Air Force District of Washington — acted independently, with no unlawful command influence. As a result of that investigation, a convening authority sent the case to court-martial.
Sergeant Bergdahl has filed another writ-appeal petition at CAAF:
No. 15-0710/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Marital Convening Authority and United States, Appellees. CCA 20150463.
Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.
Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.
The issue presented is:
Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?
The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.
CAAF’s daily journal was just updated to show that on Tuesday the court denied two significant petitions for extraordinary writs.
The first was a petition from an alleged victim in an ongoing court-martial. I discussed the petition in a post titled: An alleged victim seeks extraordinary relief from CAAF.
No. 15-0606/MC. CB v. Moira Modzelewski, Captain, U.S. Navy, in her official capacity as Military Judge, Appellee, and Donald Foster, Lance Corporal, U.S. Marine Corps, Real Party in Interest. CCA 201500058. On consideration of the writ-appeal petition, Appellant’s motion for a stay of trial court proceedings, and the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time, the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time is hereby granted; Appellant’s motion for a stay of trial court proceedings is hereby denied; and Appellant’s writ-appeal petition is hereby denied.
No. 15-0616/AR. Robert B. Bergdahl v. Mark R. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority. CCA20150383. On consideration of the writ-appeal petition, and the motions filed by Alfredo N. Foster, Jr., Esq., and Franklin D. Rosenblatt, Esq., to appear pro hac vice, said motions are granted. The writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.
Notably, in the Bergdahl petition, CAAF granted the government an extension of time to file an answer to the petition, even though the government requested the extension after the deadline to file the answer had already passed (discussed here).
Yesterday, CAAF issued the following order:
No. 15-0616/AR. Robert B. Bergdahl, Appellant v. Mark A. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority, and United States, Appellees. CCA 20150383. On consideration of Appellee’s motion to file an extension of time out of time and motion to extend time to file an answer to the writ-appeal petition, it is ordered that said motions are hereby granted, and that Appellees will file an answer to the writ-appeal petition on or before June 22, 2015.
(emphasis added). I discussed Bergdahl’s petition in this post.
Notably, CAAF’s rule 28(b)(2) appears to compel an answer to a writ-appeal petition within ten days of the filing of a petition:
(2) The appellee’s answer to a writ-appeal petition shall be filed no later than 10 days after the filing of the appellant’s writ-appeal petition.
To my knowledge, the Government routinely fails to answer writ-appeal petitions (without consequence).
According to a Los Angeles Times report available here, the Government has failed to compel five witnesses to testify during the retrial of Marine Sergeant Hutchins:
Dspite offers of immunity from prosecution, four ex-Marines and a former Navy corpsman have refused to testify against Sgt. Lawrence Hutchins in his retrial in the 2006 killing of an Iraqi.
The five — all of whom were convicted in the killing and served time in the brig — asserted their 5th Amendment right against self-incrimination during the court martial last week at Camp Pendleton.
Undeterred, the Government presses on:
Over [the defense counsel’s] objection, the judge ruled that the prosecution could submit as evidence verbatim transcripts of the squad members’ previous testimony.
The new head of DoD Personnel thinks so. In an article, here (Military Times), yesterday, Brad Carson, the Acting Under Secretary of Defense for Personnel and Readiness, is quoted as questioning up or out for certain military career paths, stating:
The best companies in America today … don’t take people who are engaged in disciplines where there is a steep learning curve, where every year you are getting better, and when you are in your 40s or your 50s and at the very apex of your career, say, ‘I’m sorry, we are forcing you to retire,’ . . . .
If you are an infantryman, that is a hard job and you are probably peaking at your performance in your 20s, or if not your early 30s at the latest, . . . .
It’s different to be 50 years old in the infantry, as opposed to being a computer network exploitation expert who is getting better every single year — or being someone in the [Judge Advocate General] Corps where you are getting better every single year, . . . .
So maybe there is a way we need to think about how to modify the up-or-out promotion system.
CAAF’s daily journal for Friday has the following entry:
No. 15-0616/AR. Robert B. Bergdahl, Appellant v. Mark A. Mi[l]ley, General U.S. Army, in his official capacity as Commanding General, U.S. Armed Forces Command and General Court-Martial Convening Authority, and United States, Appellees. CCA 20150383. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of mandamus was filed under Rule 27(b) on this date.
A copy of the petition is available here. Sergeant Bergdahl seeks to disqualify General Milley as the convening authority under the theory that he is an accuser in the case.
“An accuser is an individual: (1) ‘who signs and swears to charges’; (2) ‘who directs that charges nominally be signed and sworn to by another [type two accuser]’; or (3) ‘who has an interest other than an official interest in the prosecution of the accused [type three accuser].'” United States v. Ashby, 68 M.J. 108, 129 (C.A.A.F. 2009) (quoting Article 1(9), UCMJ) (marks in original). “An accuser may not convene a general or special court-martial, nor may he refer charges to a court-martial.” Id.
Bergdahl asserts that General Milley is a type three accuser (that he has an interest other than an official interest in the prosecution of the accused) because General Milley was recently nominated for the position of Chief of Staff of the Army (the most senior officer post in the Army). The writ-appeal petition asserts that:
General Milley’s service as GCMCA for appellant’s case while his nomination is awaiting SASC consideration and a vote by the full Senate, and in light of the extraordinary interest that body has expressed in matters relating to appellant, deprives him of the right to discretionary GCMCA decision-making that is (and appears to be) based solely on the facts and circumstances of the case, without regard to the personal interest of that official in being confirmed for higher office.
Pet. at 8 (internal citation omitted). The petition concludes by asserting that “A new GCMCA must be designated who does not have a SASC confirmation hanging over his or her head. Failing to grant the relief requested at this time will not foster public confidence in the administration of justice.” Pet. at 14.
I think the greater danger to public confidence lies in the possibility that CAAF will grant the requested relief. The petition identifies no actions by General Milley that make him an accuser; it is his nomination alone that is seen as disqualifying. Were CAAF to agree that General Milley’s mere nomination to the senior position in the Army gives him an interest other than an official interest in the prosecution of Sergeant Bergdahl, it’s hard to identify a limiting principle that would prevent a similar argument from disqualifying a wide range of convening authorities. Moreover, I think such a holding would imply that senior officers are incapable of implementing the UCMJ fairly and impartially – a disturbing proposition.
Last term, in United States v. MacDonald, 73 M.J. 426 (C.A.A.F. Aug. 27, 2014) (CAAFlog case page) CAAF unanimously reversed a premeditated murder conviction after concluding that the military judge’s failure to give an involuntary intoxication instruction regarding the appellant’s use of the smoking-cessation drug Chantix was error that was not harmless.
In a McClatchy report available here, it appears that the parties have reached a pretrial agreement in the case:
The promising young soldier who killed a Fresno, Calif., native in a Fort Benning, Ga., barracks could eventually regain his freedom, under a new plea agreement.
In a case that ravaged several families, while it raised provocative questions about the smoking cessation drug Chantix, Army Pfc. George D.B. MacDonald has agreed to plead guilty to the unpremeditated murder of Pvt. Rick Bulmer, according to relatives and other informed individuals who declined to be identified in order to talk about the case.
Sen. Clair McCaskill added and amendment to the long stalled human trafficking bill that requires. Coverage here (St. Louis Post Dispatch). The predecessor of the amendment, the Military Sex Offender Reporting Act of 2015, requires SecDef to report qualifying offenders from courts martial to DOJ for inclusion on he National Sex Offender Registry.
More coverage of the PVT Jeremiah Hill court martial here and here (military.com), focusing on the accused’s friends’ testimony about the night of the murser outside JBLM. The trial continues today.
A Joint Base Lewis-McCord soldier testified in his court-martial yesterday that he killed a fellow soldier in self-defense in the nearby town of Lakewood. Private Jeremiah Hill testified that he stabbed Spc. Tevin Geike after Geike pulled out a knife and cut Hill when he tried to take it from him. Hill’s companions on the night of the murder also testified but distanced themselves from Hill’s actions. Hill faces life in prison without the possibility of parole if he is convicted of the murder. Full report from the Tacoma News Tribune here.
The FY 2016 NDAA markup continues the trend of military justice “fixes.” Here is the HASC Subcommittee on Military Personnel Markup containing a variety of provisions focused on dealing with issues related to sexual assault. The current markup includes sections addressing retaliation against victims and witnesses to sexual assault and improved response to sexual assault of male members of the armed forces. The markup schedule is here.