CAAFlog » Court-Martial News

This Stars and Stripes article discusses the case of Petty Officer 3rd Class Austin Greening, who is facing a court-martial for a homicide that was already adjudicated in state court. The reported rationale for the successive prosecution is that the sentence adjudged by the civilian court is too light:

During a the military equivalent of a preliminary hearing Friday, Lt. Adam Partridge said another trial is needed “in the interest of justice.” He also said the victim’s parents were “extraordinarily displeased” with the result of the civilian court process.

The prosecution arises out of a 2013 shooting that was prosecuted by Virginia authorities in 2014, leading to convictions of second degree murder and use of a firearm in commission of a felony (link to news report). However, the judge granted a post-trial motion for a new trial based on issues with the autopsy report (link to news report). The accused and the Commonwealth of Virginia then reached a plea agreement, with the accused pleading guilty to involuntary manslaughter and receiving a sentence of three years imprisonment with all but six months suspended (link to news report).

The case highlights the military’s non-adherence to the DOJ policy generally prohibiting successive federal prosecutions, known as the “Petite Policy.” The Petite Policy comes from the case of United States v. Petite, 361 U.S. 529 (1960), in which an individual was subjected to successive federal prosecutions in different Districts for offenses arising out of a single criminal transaction. At the Supreme Court, the Solicitor General stated:

it is the general policy of the Federal Government ‘that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.’

Petite v. United States, 361 U.S. at 530-531. Current DOJ policy is very specific on this point:

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

United States Attorneys’ Manual (USAM), Chapter 9-2.031 (“Dual and Successive Prosecution Policy”).

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, is an obvious choice for this year’s Top Ten list.

In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was subsequently captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees that a report by the House Armed Services Committee recently found “violated several laws.” Ten months later, in March of this year, Sergeant Bergdahl was charged with the desertion and misbehavior offenses. His case was recently referred for trial by general court-martial where he will face a maximum possible punishment of life without the possibility of parole.

These factors make Sergeant Bergdahl’s case worth of special attention, but it makes our Top Ten list because its processing through the military justice system is increasingly bizarre.

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In November, in this post, I noted two writ petitions in the Bergdahl case that sought to compel public access to documents introduced during the Article 32 preliminary hearing. One petition was filed by Sergeant Bergdahl, and the other was filed by a group of media organizations. The Army CCA rejected both petitions, findings that it did not have jurisdiction. CAAF has now affirmed the CCA’s decisions.

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Army Times report here. In includes this:

In his report, the investigating officer for the Article 32 recommended Bergdahl avoid jail time, Fidell previously told the media. Lt. Col. Mark Visger’s report to Abrams also recommended the case be decided at a special court-martial.

Soldiers facing special courts-martial can receive no more than a year in jail and no worse than a bad-conduct discharge; punishments regarding hard labor and pay forfeiture have similar restrictions.

Not mentioned is one particularly significant collateral consequence of an executed punitive discharge adjudged by a general court-martial:

The discharge or dismissal by reason of the sentence of a general court-martial of any person from the Armed Forces . . . shall bar all rights of such person under laws administered by the Secretary [of Veterans Affairs] based upon the period of service from which discharged or dismissed, notwithstanding any action subsequent to the date of such discharge by a board established pursuant to section 1553 of title 10.

38 U.S.C. § 5303(a) (emphasis added). See also the VA benefits issue of the Military Law Review (winter, 2012 ed.).

Former Taliban prisoner Sergeant Bergdahl faces serious charges in connection with his disappearance and capture.

With those charges still pending, season 2 of NPR’s popular podcast Serial is about the Bergdahl case:

[I]n March, the military charged Bergdahl with two crimes, one of which carries the possibility of a life sentence. Through all of this, Bergdahl has been quiet. He hasn’t spoken to the press or done any interviews on TV. He’s been like a ghost at the center of a raucous fight.

Now, in Season Two, we get to hear what he has to say.

For this season, Sarah Koenig teams up with filmmaker Mark Boal and Page 1 to find out why one idiosyncratic guy decided to walk away, into Afghanistan, and how the consequences of that decision have spun out wider and wider. It’s a story that has played out in unexpected ways from the start. And it’s a story that’s still going on.

In a related development, the House Armed Services Committee released its report into the circumstances of Sergeant Bergdahl’s recovery: “The Department of Defense’s May 2014 Transfer to Qatar of five law-of-war detainees in connection with the recovery of a captive U.S. soldier.” Lawfare Blog has details here.

Last month the Associated Press produced a report titled: Opaque military justice system shields child sex abuse cases.

Focusing on child exploitation prosecutions (a particularly heart-wrenching kind of case), the report broadly condemns the military justice system and the Department of Defense for failing to make court-martial records easily accessible to the public, with the authors asserting that “while child sex crimes may not be swept under the rug, the Defense Department does not make it easy for the public to learn about them.” Of course, blaming the system or the DoD is nonsensical, as it is Congress and the President that make the rules.

In part, the report notes that “records from most federal court cases are available online through the Public Access to Court Electronic Records system, known as PACER. The military does not have a comparable repository.” This is certainly true. But implementing PACER (or an equivalent) is hardly simple, as it would require standardized rules for the handling, marking, and redaction of trial-stage documents in order to permit public release. Even the Associated Press admits that not everything should be public knowledge, as it does not provide the names of the child victims whose stories it uses to add emotion to its report. The military justice system currently relies on the Freedom of Information Act (FOIA) to address redaction and release, protecting the privacy rights of victims, witnesses, and even the accused. That process isn’t fast, but it’s what the law requires.

Notably, the report makes an early issue (in the third paragraph) of a Naval Criminal Investigative Service investigation that the Associated Press sought under FOIA but NCIS refused to release on privacy grounds. “The report was released only after AP appealed,” the report explains. However, a whopping nineteen paragraphs later it is revealed that:

The Naval Criminal Investigative Service initially said releasing its 198-page investigative report on DeSmit would constitute “an unwarranted invasion of personal privacy.” The AP appealed the denial, and the Navy judge advocate general’s office overruled NCIS, declaring the agency’s decision overly broad and instructing it to release all material within the report not exempted from disclosure. NCIS investigations, which include evidence from the crime scene and witness interviews, are not court documents but are used by military leaders to decide what action to take against a service member.

(emphasis added). How a PACER-like system will provide better access to things that are not court documents is anybody’s guess.

The House version of this year’s National Defense Authorization Act included a provision relating to “public availability of records of certain proceedings under the uniform code of military justice” that would have required publication of materials including “any motions and documents filed in connection with the proceeding.” I noted that provision in this post and you can read it in this document (it’s at section 556). However, the provision did not make it into the final bill. The AP report makes no mention of this provision, and sheds no light on why it wasn’t included in the final bill.

Yet the report does highlight one odd fact: court-martial results published by the services lack information on pretrial agreements:

After DeSmit’s conviction in January, the Marine Corps summed up the case in two sentences.

“At a General Court-Martial at Okinawa, Japan, Chief Warrant Officer 4 D. E. DeSmit was convicted by a military judge alone of conspiracy to commit sexual assault and rape of children, aggravated sexual abuse of a child, sexual abuse of a child and possession of child pornography. The military judge sentenced the accused to 144 years of confinement, a reprimand and dismissal,” a summary of the court-martial released by the Marine Corps read.

And that’s all the service would have said publicly, had the AP not pressed for more.

The pretrial agreement in the DeSmit case capped confinement at 20 years. While this fact likely would have been disclosed eventually (in the CCA’s opinion during mandatory appellate review), the published results present an incomplete picture of the sentence.

The publication of court-martial results is a relatively recent phenomenon. It’s unclear why those results don’t include information on pretrial agreements; seemingly crucial information. Sadly, the Associated Press seemingly made no effort to discover the reason.

There are good reasons to want greater public access to military justice records. Like any system, there’s still room to improve military justice. But the AP’s claim that the system is “opaque” and “shields child sex abuse cases” is overblown.

In the ongoing case against former Taliban prisoner Sergeant Bergdahl, there have been four separate petitions for extraordinary relief. The first (discussed here) (denial noted here) sought to disqualify General Milley as the convening authority because he was asserted to be an accuser. The second (discussed here) (also denied) asserted procedural irregularities in the early handling of the case. The third (discussed here and here) sought a writ of mandamus to permit the public release of the investigation into the circumstances of Bergdahl’s capture. The fourth (discussed here) sought relief from an order prohibiting Bergdahl or his counsel from releasing that investigative report, and is particularly notable in that a companion petition was filed by multiple media organizations that seek access to the report.

Last week, in what I think is an astonishing order, CAAF dismissed the third petition:

No. 16-0059/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-Martial Convening Authority, and United States, Appellees. CCA 20150624. On consideration of the writ-appeal petition for review of the U.S. Army Court of Criminal Appeals decision on petition for a writ of mandamus, the motion on behalf of the National Institute of Military Justice for leave to file a brief as amicus curiae, the motion of the Center for Constitutional Rights to file a brief as amicus curiae, the motion of NBC News, a division of NBCUniversal Media, LLC, for leave to file a brief as amicus curiae, and Appellant’s motion for an expedited hearing, it is ordered that the motions of the National Institute of Military Justice, the Center for Constitutional Rights and NBC News to file amicus curiae briefs are hereby granted, that the writ-appeal petition is hereby dismissed, and that the motion for an expedited hearing is hereby denied as moot.

(emphasis added). CAAF’s order is what Alton Brown would describe as wafer thin, but the decision to dismiss the third petition without explanation (such as, perhaps, that the court considers it moot in light of the fourth petition), and also to dismiss it rather than deny it without prejudice (as the first and second petitions were) is really very surprising. It’s also puzzling.

Dismissal is appropriate when the court lacks jurisdiction, such as in The Center for Constitutional Rights, Glenn Greenwald, Jeremy Sachill, The Nation, Amy Goodman, Democracy Now!, Chase Madar, Kevin Gosztola, Julian Assange, and Wiki[shhh] v. The United States of America and Chief Judge Colonel Denise Lind, 72 M.J. 126 (C.A.A.F. 2013) (CAAFlog case page). Notably, since CCR was decided, I’m aware of just six extraordinary writ petitions / appeals that were dismissed by CAAF:

  1. Wilson, No. 13-8038/AF: Dismissed “for lack of jurisdiction” on August 2, 2013;
  2. Forry, No. No. 13-8037/AR: Dismissed “for lack of jurisdiction” on September 23, 2013;
  3. [LC], No. 14-8007/NA:  Appellant’s “motion to dismiss the writ-appeal petition” granted on January 15, 2014;
  4. Roukis, No. 15-0170/AR: Dismissed “for lack of jurisdiction” on November 18, 2014;
  5. Andreozzi, No. 15-0403/AR: Dismissed “for lack of jurisdiction” on March 21, 2015;
  6. And now Bergdahl, No. 16-0059/AR: Dismissed for no specified reason on November 23, 2015.

One of these is not like the others (and Bergdahl did not move for dismissal).

The Army CCA issued two interesting decisions on petitions for extraordinary relief in the Bergdahl case (complete coverage here). The first decision involves a petition by Sergeant Bergdahl (last discussed here) 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. The CCA’s decision denying the writ states that:

Although not phrased as such, the relief petitioner seeks is for this court to countermand an order given by a military commander, in a circumstance where there is not yet—and may never be—a court-martial. This would be a broad view of this court’s jurisdiction.

. . .

Viewing [ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997)] in light of [Clinton v. Goldsmith, 526 U.S. 529 (1999)], we reject the invitation to extend the jurisdiction of this court under the All Writs Act to the pre-referral matter raised in this writ.

Bergdahl v. Burke & the United States, No. 20150624, slip op. at 3 (A. Ct. Crim. App. Oct. 8, 2015) (link to slip op.). The CCA also concluded that even if it had jurisdiction, the petition failed to establish any right to relief.

The second decision involves a similar petition from Bergdahl and multiple media organizations, and the CCA again finds that it lacks jurisdiction:

The jurisdiction of this court to issue process under the All Writs Act is limited to issues having “the potential to directly affect the findings and sentence.” LRM v. Kastenberg, 72 M.J. 364, 368 (2013); 28 U.S.C. § 1651. This court does not have jurisdiction to oversee the administration of military justice generally. Clinton v. Goldsmith, 526 U.S. 529, 534 (1999). Petitioner has not demonstrated that the release of documents to the public, prior to any decision on whether this case should be referred to trial, has the potential to directly affect the findings and sentence.

Hearst Newspapers, LLC, et al., & Bergdahl v. Abrams, Burke, Visger & the United States, No. 20150652, slip op. at 2 (A. Ct. Crim. App. Oct. 14, 2015) (link to slip op.).

Writ-appeal petitions of both decisions have been filed at CAAF.

Readers may recall the Wright case, which was 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.

I discussed the AFCCA’s decision in this post. I summarized our prior coverage of the case in this post.

In a story available here, the Air Force Times reports that Airman Wright was just acquitted of all charges at trial:

An airman has been found not guilty of sexual assault after his case was transferred from Europe to Washington following a three-star general’s initial decision not to proceed with a court-martial.

A military panel of three officers and four enlisted airmen exonerated Senior Airman Brandon Wright on Wednesday evening, said Maj. Joel Harper, a spokesman for the Air Force District of Washington.

Wright had been accused of aggravated sexual assault in connection with a July 2012 incident while he was stationed at Aviano Air Base, Italy. Wright had also been charged with rape, but the prosecution later withdrew that charge.

Update: As noted in the comments, Stars & Stripes also has a report about the case, available here.

CAAF’s daily journal shows the following entry for Tuesday:

No. 16-0059/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-Martial Convening Authority.  CCA 20150624.  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 writ of mandamus was filed under Rule 27(b) on this date. Appellees will file an answer to said writ-appeal petition on or before October 23, 2015.

Prior coverage of the subject of this petition is available here.

Notably, CAAF’s docketing entry includes an order for the Government to file an answer to the petition. Bergdahl’s first writ-appeal petition (discussed here) was docketed without an order to answer, however eleven days later the court issued such an order (discussed here). Bergdahl’s second writ-appeal petition (discussed here) was also docketed without an order to answer, but the court did not order the government to answer.

Details in this Associate Press report posted by Stars and Stripes and by the New York Times.

I analyzed the writ petition in this post, and noted in this post that the court ordered the Government to respond.

In other news of the Bergdahl case, the Article 32 preliminary hearing officer completed his report and recommendation, however neither are public. Details available in this Washington Post story.

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.

I discussed the AFCCA’s decision in this post. I summarized our past coverage in this post.

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.