CAAFlog » Court-Martial News

It’s not well-reported elsewhere, but Sergeant Bergdahl’s pleas of guilty to 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, included exceptions and substitutions limiting his desertion to only a single day.

An Army press release available here explained that:

Sgt. Bergdahl entered pleas of guilty to both charges, but indicated his period of desertion was for only one day. Following the entry of pleas, the government introduced evidence in support of the position that the period of desertion was for the entire period of Sgt. Bergdahl’s captivity. The military judge found Sgt. Bergdahl guilty of both charges with a one day period of desertion. The military judge also denied a defense motion to dismiss one of the charges as excessive, but announced he would combine both charges for sentencing purposes.

Earlier today I noted that BGen Baker filed a petition for a writ of habeas corpus seeking release from confinement to quarters after being found in contempt by military commission judge Colonel Spath in connection with a dispute over the release of civilian attorneys representing Abd al Rahim al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole.

As I wrote in this post, BGen Baker’s actions do not meet the statutory definition of contempt applicable to military commissions.

Since then I’ve had a chance to read the brief filed on Baker’s behalf in support of the habeas petition and – while I still believe that Baker’s conduct is not contempt – I think the petition is a loser.

Here’s why.

Read more »

A reader provided this link to a draft transcript of yesterday’s contempt proceedings in the al Nashiri military commission at Guantanamo, during which Air Force Military Judge Colonel Vance Spath found Marine Corps Brigadier General John Baker in contempt. A draft transcript of the proceedings that precipitated the contempt proceedings is available here.

General Baker has since petitioned for a writ of habeas corpus.

Having reviewed both transcripts, the applicable Rule for Military Commissions 809 (which is substantially identical to Rule for Courts-Martial 809), and the underlying statute 10 U.S.C. § 950t(31) (which is significantly different from Article 48, 10 U.S.C. § 848), I am pretty confident of two things:

First, what General Baker did is not contempt within the meaning of the statute.

Second, I warned about this.

Read more »

Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – who yesterday was found in contempt by Air Force Military Judge Colonel Vance Spath and ordered confined to quarters, has filed this petition for a writ of habeas corpus, and this request for emergency expedited consideration, in U.S. District Court for the District of Columbia.

Update (1820 eastern):

The petition was heard this afternoon and PACER has the following entry:

11/02/2017 Minute Entry for proceedings held before Judge Royce C. Lamberth: Miscellaneous Hearing held on 11/2/2017 in re PETITION for Writ of Habeas Corpus. Oral arguments heard and the matter has been submitted. Miscellaneous Hearing continued to 11/3/2017 at 02:00 PM in Courtroom 15 before Judge Royce C. Lamberth. (Court Reporter Janice Dickman) (nbn) (Entered: 11/02/2017)

The Associated Press reports here that:

A military judge on Thursday began deliberating the punishment for Army Sgt. Bowe Bergdahl after defense attorneys asked for no prison time while prosecutors sought more than a decade behind bars.

Army Col. Jeffery Nance said he planned to spend the afternoon considering evidence and would open court again Friday morning to continue deliberating then. It wasn’t clear when he would deliver the sentence.

Bergdahl faces up to life in prison after pleading guilty to desertion and misbehavior before the enemy for walking off his remote post in Afghanistan in 2009. In closing arguments, prosecutors asked for a sentence of 14 years in prison, citing serious wounds to service members who looked for Bergdahl.

“Sgt. Bergdahl does not have a monopoly on suffering as a result of his choices,” said Maj. Justin Oshana, a prosecutor. Contrasting Bergdahl to the wounded searchers, he added, “The difference is all the suffering stems from his choice.”

But defense attorneys argued Bergdahl already suffered enough confinement during five years of brutal captivity by Taliban allies. They asked the judge to give their client a dishonorable discharge and no prison time. Their argument for leniency also cited harsh campaign-trail criticism by Donald Trump and Bergdahl’s mental disorders.

Any discharge as a result of a general court-martial will permanently deprive Sergeant Bergdahl of benefits administered by the Department of Veterans Affairs as a matter of law.

Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered into confinement today by Air Force Military Judge Colonel Vance Spath, who found the General in contempt for in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).

Carol Rosenberg of the Miami Herald reports here that:

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

. . .

In court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down.

“There are things I want to say, and you are not allowing me to say them,” Baker told the judge.

Spath replied, “This is not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.”

. . .

The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review his contempt finding and sentence. Meantime, however, he ordered court bailiffs to arrange for the general to be confined to his quarters — a room in a trailer at Camp Justice, behind the courtroom — until Rishikof acted or found a different place.

Rishikof had approved the site provisionally, Spath said, and was permitting Baker to have internet and phone communications at his quarters.

Additional details about the release of the three civilian attorneys is available in this report (also from Miani Herald reporter Carol Rosenberg).

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

For example, the Associated Press reports here that:

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

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

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

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

Thanks to our reader for the tip.

Having pleaded guilty last week without the benefit of a pretrial agreement, Sergeant Bergdahl was scheduled to be sentenced by a general court-martial composed of a military judge alone today. But the sentencing is continued until Wednesday as the military judge – Army Colonel Jeffrey Nance – considers a last-minute defense motion to dismiss. The Associated press reports here that:

The judge deciding Army Sgt. Bowe Bergdahl’s punishment said Monday he is concerned that President Donald Trump’s comments about the case could impact the public’s perception of the military justice system.

Sentencing was set to begin Monday for Bergdahl on charges that he endangered comrades by walking off his post in Afghanistan in 2009. But the judge, Army Col. Jeffery R. Nance, instead heard last-minute arguments by defense attorneys that recent comments by Trump are preventing a fair proceeding. Bergdahl faces a maximum sentence of life in prison.

Nance allowed the attorneys to question him about whether he was swayed by Trump’s comments. Nance said he wasn’t aware of the comments beyond what was in the legal motions. Nance said he plans to retire as a colonel in about a year and isn’t motivated by pleasing commanders to win a future promotion.

“I don’t have any doubt whatsoever that I can be fair and impartial in the sentencing in this matter,” Nance said.

The AP report also notes that “sentencing was set to resume Wednesday because a defense attorney wasn’t available Tuesday, the judge said.”

Colonel Nance’s confidence that he can be fair and impartial, the objective evidence supporting that conclusion (including his record and his impending retirement), Bergdahl’s guilty pleas, and the enormous publicity surrounding this case, provide plenty of reasons to reject the defense motion to dismiss that is based on the President’s recent brief reference to his prior comments in the case.

Read more »

THE WHITE HOUSE

Office of the Press Secretary

FOR IMMEDIATE RELEASE

October 20, 2017

*Statement Regarding Military Justice*

**

Military justice is essential to good order and discipline, which is indispensable to maintaining our armed forces as the best in the world. Each military justice case must be resolved on its own facts. The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations. There are no expected or required dispositions, outcomes, or sentences in any military justice case, other than those resulting from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law by officials exercising their independent judgment.

###

Source.

Thanks to our reader for the tip.

Four years ago an Air Force lieutenant colonel who was the chief of the service’s Sexual Assault Prevention and Response office was accused of sexual assault. The NBC story we referenced in this post isn’t on the web anymore, but here’s a report from another source about the accusation.

The sexual assault charges were eventually dropped, and other charges ended with an acquittal, but the meme economy made the case infamous (link is to YouTube video that’s still plenty relevant).

Today, Craig Whitlock of the Washington Post reports here (backup here) that:

The Army is grappling with a resurgence of cases in which troops responsible for preventing sexual assault have been accused of rape and related crimes, undercutting the Pentagon’s claims that it is making progress against sexual violence in the ranks.

In the most recent case, an Army prosecutor in charge of sexual assault investigations in the Southwest was charged by the military last month with putting a knife to the throat of a lawyer he had been dating and raping her on two occasions, according to documents obtained by The Washington Post.

Additionally, a soldier at Fort Sill, Okla., who was certified as a sexual-assault-prevention officer was convicted at a court-martial in May of five counts of raping a preteen girl.

Army officials confirmed to The Post that eight other soldiers and civilians trained to deter sex offenses or help victims have been investigated over the past year in connection with sexual assault. The Army would not provide details, saying that many of the investigations are pending.

A reader forwarded me this motion to dismiss filed yesterday by the defense in the Bergdahl case. The basis for the motion is a comment President Trump made about the case during a press conference on Monday:

At 1:47 p.m. on 16 October 2017, President Trump held a joint press conference in the Rose Garden with Senate Majority Leader Mitch McConnell. According to the official transcript, the following colloquy occurred between the President and a member of the press corps:

Q Mr. President, Ronica Cleary with Fox 5.

THE PRESIDENT: Yes.

Q Do you believe that your comments in any way affected Bowe Bergdahl’s ability to receive a fair trial? And can you respond to his attorney’s claims that —

THE PRESIDENT: Well, I can’t comment on Bowe Bergdahl because he’s — as you know, they’re — I guess he’s doing something today, as we know. And he’s also — they’re setting up sentencing, so I’m not going to comment on him. But I think people have heard my comments in the past.

(Emphasis added.)

Mot. at 2. The motion then argues that:

President Trump stands at the pinnacle of an unbroken chain of command that includes key participants in the remaining critical steps of the case. Among these are the Military Judge, the staff judge advocate, the general court-martial convening authority, and the judges of the Court of Criminal Appeals.

Mot. at 3.

Why this justifies “dismiss[ing] the charges and specifications,” Mot. at 1, after Bergdahl pleaded guilty, is anybody’s guess.

Presumably, however, Bergdahl’s defense team will voir dire the military judge prior to sentencing.

The motion also states:

The defense offers the transcript and a DVD of the colloquy reproduced above in support of the motion. We assume the government will not contest their authenticity and accuracy. If that is incorrect, we will ask that President Trump be called to testify telephonically.

Mot. at 3 (emphasis added). The prospect of calling the President to testify by telephone about a statement that was recorded, broadcast (watch it here), and witnessed by a great many people (any of whom could testify that it was said) is almost as ridiculous as dismissal would be.

Updated to add: I previously addressed the President’s comments about the Bergdahl case in this post, in which I wrote:

Dismissal is a remedy for unlawful command influence, but it’s the most extreme remedy and it means that Bergdahl could never receive a fair trial in the wake of Trump’s pre-election comments. Getting a fair trial may be harder than it would have been before the comments – or it could be easier if the court-martial members think the comments were inappropriate and hold them against the prosecution – but there’s no evidence that a fair trial is impossible.

In that post I also observed that:

There’s absolutely no evidence that the military judge (Colonel Jeffrey Nance) or the multiple appellate military judges who have considered this issue are the slightest bit afraid to correct injustice when they see it. Rather – as I noted here in the context of comments by Senator McCain that Bergdahl also tried to use to win a dismissal – the reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army trial and appellate military judges in the face of any kind of improper influence.

As suspected here, and expected here, the Associated Press reports here that Sergeant Bergdahl pleaded guilty this morning.

Surprisingly, the guilty pleas (a dive) were entered without the benefit of a pretrial agreement (a naked plea). From the AP report:

FORT BRAGG, N.C. (AP) — Army Sgt. Bowe Bergdahl, a Taliban captive for five years after abandoning his post in Afghanistan, pleaded guilty Monday to desertion and misbehavior-before-the-enemy charges that could put him in prison for life.

“I understand that leaving was against the law,” said Bergdahl, whose decision to walk off his remote post in Afghanistan in 2009 prompted intense search and recovery missions, during which some of his comrades were seriously wounded.

Bergdahl, 31, is accused of endangering his comrades by abandoning his post without authorization. He told a general after his release from five years in enemy hands that he did it with the intention of reaching other commanders and drawing attention to what he saw as problems with his unit.

The prosecution made no agreement to limit Bergdahl’s punishment in return for the soldier’s guilty pleas. The judge, Army Col. Judge Jeffery R. Nance, reminded Bergdahl that he could spend the rest of his life in prison, and asked him one last time if he wanted to plead guilty. “Yes,” Bergdahl replied, and the judge accepted the pleas.

(emphasis added).

Story here.

Army Sgt. Bowe Bergdahl is expected to plead guilty soon to desertion and misbehavior before the enemy rather than face trial for leaving his Afghanistan post.

That’s according to two individuals with knowledge of the case.

They tell The Associated Press that Bergdahl will submit the plea later this month and sentencing will start Oct. 23. The individuals weren’t authorized to discuss the case and demanded anonymity.

Two months ago I noted that Bergdahl elected trial by a military judge alone, and I commented that the choice was a “preface to a guilty plea.”

Thanks to our reader for the tip.

In a lengthy story published in the Washington Post yesterday and available here, reporter Craig Whitlock writes about the way the Air Force handled sexual misconduct allegations made by a female civilian employee against her military supervisor, Colonel Ronald Jobo.

The story outlines cringe-worthy sexual harassment of the civilian employee by the Colonel, eventually leading to his receipt of nonjudicial punishment and transfer to the retired list at a reduced rank. It’s hard to gauge the appropriateness of this disposition without a comprehensive review of the facts and circumstances. But the story doesn’t offer that to the reader. Rather, it advances the tired narrative that the military is somehow incapable of addressing sexual misconduct within the ranks:

In their report, the investigators compiled extensive evidence that the colonel, Ronald S. Jobo, had committed abusive sexual contact against the woman, a civilian in her 30s. Under military law, the charge would have automatically resulted in a court-martial, a proceeding open to the public. The crime carried a sentence of up to seven years in prison and a requirement to register as a sex offender.

The decision on what to do next rested with a three-star general 600 miles away at Wright-Patterson Air Force Base in Ohio. In the military-justice system, commanders — not uniformed prosecutors — have the power to dictate how and whether criminal cases should be pursued.

In March 2016, Lt. Gen. John F. Thompson, the senior officer in Jobo’s chain of command, decided against charging Jobo with abusive sexual contact, or any crime at all. Instead, Thompson imposed what the military calls non­judicial punishment, or discipline for minor ­offenses.

Jobo was forced to retire and demoted one rank, to lieutenant colonel. Because the military keeps most disciplinary actions secret, the case was hidden from public view.

There would be no trial, no publicity and no public record — the same for thousands of other sexual assault investigations each year in the armed forces.

An examination of the Jobo investigation, based in part on an internal 400-page law enforcement case file obtained by The Washington Post, casts doubt on the military’s promises to crack down on sexual misconduct and hold commanders accountable for how they administer justice.

This reporting suffers from a few serious flaws.

Read more »

Here is a link to Army Times coverage of the Harvard Kennedy School disinviting Chelsea Manning from the list of 2018 Fellows after a severe case of public backlash. Here is the school’s statement, which talks about the “extent to which [a Fellow’s] conduct fulfills the values of public service to which we aspire.”