Here is CNN’s coverage of the military judge’s denial of SGT Bergdahl’s motion to dismiss the charges against him based on President Ttump’s campaign trail comments calling Bergdahl a “traitor” and saying that he should be shot. Bergdahl, as you probably know and CNN reports, “faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014,” until a prisoner swap returned him to US custody. Here is CNN’s link to a copy of the 8-page decision from Colonel Nance, the judge in the case.
Here is CNN coverage of POTUS’s early morning tweet paraphrasing Fox News coverage of a Private Manning article, here, that was critical of President Obama for being insufficiently progressive. The tweet reads:
Ungrateful TRAITOR Chelsea Manning, who should never have been released from prison, is now calling President Obama a weak leader. Terrible!
Just in case you were wondering, I have not found anything that specifically prohibits raising UCI at any point in the court-martial process. Any thoughts on UCI over the post-trial process? H/t LM
Here is a link to The Hill’s coverage of SGT Bowe Bergdahl’s motion to dismiss the charges against him based on Unlawful Command Influence (UCI). The motion argues, according to the article, that President Trump’s statements on the campaign trail calling for Bergdahl’s execution make it impossible for the SGT to obtain a fair trial. Bergdahl Will face a General Court Martial in April on charges of “desertion and misbehavior before the enemy after walking away from his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.” More from Politico here.
Here is the NYT article on the commutation of Private Manning’s sentence that results in a release date in May of 2017 rather than finishing the remaining 27 or so years and being released in approximately 2045. H/t JK
In this post I noted news reporting about a military legal ethics inquiry connected to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016. Such ethics inquiries are notoriously opaque.
That inquiry is now over. Stars and Stripes reports here that:
The ethics probe into Navy-Marine Corps Court of Criminal Appeals Judge Cmdr. Aaron Rugh was closed after the investigation “found that the available evidence failed to support a violation” of the Rules of Professional Responsibility governing Navy lawyers, according to a memo signed by Vice Adm. J.W. Crawford III, the Navy Judge Advocate.
“Accordingly, no further inquiry will be conducted and the matter is now closed,” said the brief memo dated Monday and received Tuesday by Stars and Stripes.
The Washington Post’s Jonathan Woodrow Cox – whose reporting led to this prosecution of Major Thompson – also writes about the end of the inquiry here.
Defense counsel often tell an accused that he has one job: Keep your mouth shut. Marine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox illustrate why.
Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).
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.