The Politics of Military Justice, Bowe Bergdahl Edition

The senator overseeing the Pentagon wants to conduct a deeper dive into the case. Can the general deciding Bergdahl’s fate ignore the pressure?

<> on October 6, 2015 in Washington, DC.
<> on October 6, 2015 in Washington, DC.

One of Washington’s most powerful lawmakers is inserting himself into the legal debate over whether Sgt. Bowe Bergdahl should go to prison, raising questions about whether the alleged deserter will receive a fair sentence when the military announces his fate in the coming days.

Bergdahl has been at the center of a political firestorm since the Obama administration released five Taliban prisoners from Guantanamo Bay to win his freedom. Critics like Sen. John McCain, who oversees the Pentagon from his perch at the helm of the Senate Armed Services Committee, have spent years accusing the White House of exchanging dangerous terrorists for a soldier who abandoned his post, endangering both his fellow soldiers at the base and those who spent weeks searching for him in one of the most dangerous regions of Afghanistan.

Earlier this month, the Army officer presiding over Bergdahl’s preliminary hearing sent his recommendations to Gen. Robert Abrams, suggesting that Bergdahl not receive any jail time. Abrams will make the final decision on how to punish Bergdahl. And that’s where things get tricky, since McCain’s panel controls the promotion process for military officers like Abrams, potentially giving him an incentive to tailor his decision to please the lawmaker who will most directly decide whether he continues to ascend up the ranks of the military.

McCain has never been reluctant to express his opinions on matters big and small, and the Bergdahl case has been no exception. Speaking just days after military lawyers recommended the soldier receive a light sentence, McCain told the Boston Herald: “If it comes out that he has no punishment, we’re going to have a hearing in the Senate Armed Services Committee.”

He continued: “I am not prejudging, OK, but it is well-known that in the searches for Bergdahl, after — we know now — he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter. We need to have a hearing on that.”

The general was doubtlessly listening to those comments closely. As the so-called “convening authority” in the case under the Uniform Code of Military Justice, Abrams, a highly regarded officer who has commanded in Iraq and Afghanistan, and whose Army general father was so revered that the Army named its M1 Abrams tank in his honor, retains full discretion over what he decides. But any future promotions to other positions within the Pentagon, as Abrams knows, must go through McCain’s senate committee. Angering the powerful lawmaker could have a direct impact on his own career.

“There’s a systemic weakness and vulnerability here, where very high-level commanders who are given the absolute authority to refer charges have to be reappointed by the president and reconfirmed by the Senate,” said Rachel VanLandingham, a professor at Southwestern Law School and former U.S. Air Force attorney.

“Generals nowadays are aware that someone in the Senate Armed Services Committee could control their ultimate fate” if they take politically problematic decisions, she added. “Conflict of interest could be perception or reality. If Abrams doesn’t do what Sen. McCain wants, his career could be over.”

Days after McCain spoke, in fact, Bergdahl’s civilian lawyer, Eugene Fidell, filed papers with the U.S. Court of Appeals for the Armed Forces arguing that McCain’s comments amounted to “unlawful congressional influence.” He said that McCain’s leadership of the Senate Armed Services Committee could very well influence the decision-making process because of its control over the fate of officers like Abrams.

A spokesman for the Senate Armed Services Committee said the panel “will continue its longstanding oversight of the entire matter of [Sgt.] Bergdahl, not just his conduct, but also the administration policy that led to the release of five high-value Taliban detainees without congressional notification, as required by law. Chairman McCain wants the legal proceedings to run their course before making a determination how best to continue the committee’s oversight work.”

An Army spokesman declined to comment, saying, “as legal action is ongoing, we continue to maintain careful respect for the military-judicial process, the rights of the accused, and ensuring the case’s fairness and impartiality.”

McCain’s threat to hold a hearing about the case came after Lt. Col. Mark Visger’s recommendation to Abrams — which has not been made public by the Army — that Bergdahl’s punishment be decided at a special court-martial. That route would ensure that Bergdahl would serve no more than a year in jail, as opposed to a full court-martial, which could lead to life in prison.

But other top military officers have made clear that they don’t think Bergdahl should receive any jail time at all.

Visger presided over Bergdahl’s preliminary Article 32 hearing in September, which saw Maj. Gen. Kenneth Dahl, the officer who led the investigation into Bergdahl’s case, testify that given the years of torture Bergdahl endured at the hands of his Taliban captors, he did not believe “there is a jail sentence at the end of this process.”

“I think it would be inappropriate,” the general added.

A few recent cases point out how political pressure has had a real effect on the careers of high-ranking generals. The most significant is the case of Air Force Lt. Gen. Craig Franklin, who in January 2014 announced he was retiring from the service after his handling of a sexual assault conviction drew outrage on Capitol Hill.

In February 2013, Franklin overturned a military jury’s conviction of Lt. Col. James Wilkerson, who had been convicted of aggravated sexual assault and sentenced to a year in detention and expulsion from the military. But Franklin reinstated Wilkerson and even attempted to promote him.

The action drew a harsh response from Capitol Hill, with Sens. Barbara Boxer (D-Calif.) and Jeanne Shaheen (D-N.H.) sending a letter to then-Defense Secretary Chuck Hagel asking that he “immediately review” Franklin’s decision. Sen. Claire McCaskill (D-Mo.) also wrote Gen. Mark Welsh, the Air Force’s chief of staff, and Michael Donley, the Air Force secretary at the time, calling for an immediate review to “consider removing him from his leadership position.”

In 2013, another Air Force officer, Lt. Gen. Susan Helms, had her nomination to become vice commander of the Air Force’s Space Command blocked by McCaskill after it was discovered that Helms had overturned the conviction of an officer on charges of aggravated sexual assault. Helms also retired in 2014.

Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary’s University School of Law and a former Army lawyer, also said that the politicized nature of the Bergdahl case could be a problem for Abrams. But Addicott said the general could have a way out. Most convening authorities, he said, tend to follow the recommendations that come out of the Article 32 hearings. In Bergdahl’s case, those were for little to no jail time. Abrams, Addicott added, could hope that sticking to tradition might inoculate him from the furies of the Senate Armed Services Committee.

Photo credit: Mark Wilson/Getty Images

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