Military Justice for Bergdahl
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Eight years ago Army Private Bowe Bergdahl was stationed in Afghanistan. He didn’t like his fellow soldiers, his commanding officer, or pretty much anything about his circumstances. So he planned to change them.

Bergdahl reportedly gave away his equipment, mailed his laptop to his parents in the U.S., and deserted his post. He was captured and held by the Taliban for five years.

The Taliban aren’t dummies. They knew — as did the whole world — that then-president Obama was desperate to close the terrorist detention facility at Guantanamo Bay, Cuba. Obama didn’t care much about how Gitmo was emptied, just as long as it was.

So in 2014 the Taliban proposed a prisoner swap. They asked for five top Taliban leaders: Mullah Mohammad Fazl (former Taliban deputy defense minister), Mullah Norullah Noori (senior military commander), Abdul Haq Wasiq (former Taliban deputy minister of intelligence), Khairullah Khairkhwa (heroin trafficker and Taliban governor of Herat Province), and Mohammed Nabi Omari (senior Taliban official who had served in several roles including liaison to the Haqqani terrorist network) in exchange for lowly Private Bergdahl.

Obama accepted the deal. National Security Advisor Susan Rice — she of the infamous Benghazi lies — began lying in defense of Bergdahl and Obama’s deal. Rice said Bergdahl had served “with honor and distinction.” Then-secretary of state Hillary Clinton took credit for her part in engineering the deal.

But soon the leaks began. Bergdahl was suspected of desertion. The men in his unit said he’d just “walked off” one night. Search teams sent in an intense effort to find Bergdahl suffered injuries, such as one SEAL who was wounded so badly he had to give up his SEAL career.

Bergdahl began talking. He said that the Taliban had treated him better than Americans did. It’s entirely possible that he intended to desert to the Taliban, but we’ll never know.

To no one’s surprise, at least three of the released senior Taliban rejoined and went back to fighting American and NATO forces in Afghanistan.

In his court martial, Bowe Bergdahl pled guilty to desertion. The military judge, Army Col. Jeffrey Nance, last week held a week-long hearing on evidence that can affect the sentence he gives Bergdahl. And that’s where President Trump comes in.

The problem is what the Uniform Code of Military Justice labels “unlawful command influence.” In rough terms, “unlawful command influence” occurs whenever someone in the chain of command above the defendant attempts to influence the outcome of the court martial to the detriment of the defendant.

“UCI” can happen in myriad ways. A general could call the judge to say he’s expecting a tough result. A commander could choose the members of the court martial board on the basis of telling them that their performance reports will reflect the decision. Or someone higher up in the chain of command — which includes the president — can make a statement that says what he wants done.

In 1974, I was a very young captain and an Air Force judge advocate. I received orders to attend the JAG School. It turned out to be two weeks of work crammed into six weeks so we had plenty of time to do other things. One was to travel to Washington, D.C. to meet the big boss, the Air Force Judge Advocate General.

But Maj. Gen. Harold R. Vague (the best name ever for a lawyer) wasn’t at all living up to his name when he told us that if we ever experienced or even suspected unlawful command influence in a military justice case we were handling, we should call him directly and he’d be on the next plane to solve the matter.

As the courts have said, unlawful command influence is a cancer on the military justice system. It is guarded against every day, but nevertheless it happens.

As in the case of decorated Navy Special Warfare Operator (SEAL) Senior Chief Keith Barry. Barry was charged with sexual assault and court martialed in 2014. Rear Adm. Patrick Lorge, overseeing the case and not believing the evidence, had planned to overturn the conviction, which was in his power to do.

But Lorge received confusing advice from his own JAG. Far worse, Vice Adm. Nanette DeRenzi, then the Navy’s Judge Advocate General, told Lorge that she was under intense pressure from Congress on sexual assault cases and that a lot of her time was being taken up dealing with them.

When DeRenzi retired, she was succeeded by Vice Adm. James Crawford III. Crawford told Lorge “not to put a target on his back,” so naturally Lorge concluded that he had to approve Barry’s sentence rather than overturn it.

Barry’s lawyers pushed back, appealing the case to the U.S. Court of Appeals for the Armed Forces. That court appointed Air Force Col. Vance Spath — outside the Navy chain of command — to perform a special investigation. Spath found the facts cited above and returned the case to the appeals court for decision where it is still pending.

In cases where UCI is found, the defendant may have all charges dismissed or his punishment can be reduced. In Barry’s case, the military justice system was so perverted by unlawful command influence — up to and including two Navy judge advocate generals — the case should be dismissed in its entirety and Barry returned to duty.

Which brings us back to Bowe Bergdahl.

During the 2015-2016 campaign, candidate Trump repeatedly said that Bergdahl was a “traitor” who deserved harsh punishment, maybe even being shot. In last week’s hearing before Judge Nance, the matter was raised again by Bergdahl’s lawyers.

Candidate Trump’s remarks during the campaign were made before he became the top of Bergdahl’s chain of command. They can be ignored as Nance almost certainly will do.

But in mid-October, a reporter asked President Trump about the Bergdahl case. Instead of saying “no comment,” as he obviously should have, Trump said that he couldn’t say anything more about the case. But, as he always does, especially when he shouldn’t, Trump went on.

Trump said, “…but I think people heard my comments in the past,” clearly reinforcing them.

Prosecutors told Judge Nance that the president was only answering the question and not reaffirming his campaign statements. Nance said he was having a “hard time” with that argument, noting that public confidence in the military justice system was something he had to consider.

Nance is precisely correct. He not only has to consider the public’s confidence but also the military’s confidence in the system. The military justice system, even more than the civilian one, depends on trust because of the one huge difference between them.

The civilian courts answer to no one other than the appellate courts and, ultimately, the Supreme Court. The military courts, like everyone else in the military, answer to their commanders. The highest-ranking commander is the Commander-in-Chief.

That’s why Nance took the unheard-of step of subjecting himself to questions by both the defense and prosecuting attorneys. He said he had complete confidence in his ability to render an impartial decision on Bergdahl’s sentence.

But Trump’s words hang like a dark cloud over Nance. He may choose to dismiss the case against Bergdahl. More likely, he will render a sentence that is lighter than he otherwise would have and say so. Either way, the case will go through the appellate process and probably reach the Supreme Court in a couple of years.

This isn’t the first time that Trump displayed his uncaring ignorance of military matters. In a December 2015 early primary debate, Trump said — twice — that we should specifically target terrorists’ families because though terrorists may not care about their own lives, they certainly care about the lives of their families.

As I wrote at the time, intentionally targeting civilian non-combatants is a war crime. Trump either didn’t know that or didn’t care. Either is inexcusable.

There is a bond between every president and every soldier, sailor, airman, Marine and coastguardsman. It is a bond of trust that was repeatedly violated by Presidents Clinton and Obama. Now Trump has violated it.

Candidate Trump’s remarks about Bergdahl are of no consequence. President Trump’s remarks may result in a deserter going unpunished for one of the gravest crimes a soldier can commit. It’s long past time for him to know better, and to understand.

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