The saga of Sergeant Bowe Bergdahl has inspired much discussion among lawyers and laypersons alike. This blog has covered the Bergdahl case’s development assiduously. A particularly animated discussion has developed around the question of whether the President’s commentary regarding the case has impermissibly tainted the military justice system’s ability to afford Sergeant Bergdahl a fair trial.
In an effort to reassure the public that the military justice system is made of sterner and more independent stuff than its critics might suppose, the White House recently issued a missive declaring:
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.
This blog characterized that press release as being a “predictable statement of the obvious.”
A recent article by University of New Mexico Law Professor Joshua Kastenberg offers a vantage point from which to observe the unfolding controversy. His article in the Southwestern Law Review is entitled Command Responsibility in the Twenty First Century: The United States Basic Framework and Future Military (and Quasi-Military) Operations, 46 Sw. L. Rev 379 (2017). The article describes the character of Presidential command authority, the obligations that come with it, and the means of making a President accountable for it.