How Bergdahl’s Case Perverts Military Justice

In his 60-year old classic study of U.S. civil-military relations, The Soldier and the State, the late Samuel Huntington observed the traditional attitude of liberal American society toward the military was “conform or die.” During periods of peace, when security was not at stake, he contended, liberalism’s policy was “extirpation,” the attempt to eliminate the military as an “institution of violence.” During wartime, liberalism’s policy has been “transmutation,” the “refashioning of the military institutions along liberal lines so that they lose their peculiarly military characteristics.”

A major example of transmutation was the post-World War II change in the military justice system culminating in the creation of the Uniform Code of Military Justice (UCMJ). Before the UCMJ, the U.S. Army and Navy had been governed by the Articles of War (the Navy’s version was called “Rocks and Shoals”). Critics claimed that the Articles gave too much authority to commanding officers, were too arbitrary, and did not meet the standards of justice in a liberal society. Attitudes toward the pre-UCMJ system of military justice were captured by this ditty: “Let the wheels of justice spin/Bring the guilty bastard in.” Such a system, employed for generations to maintain order and discipline in an army and navy made up of long-term volunteers, did not seem appropriate for the large military made up of draftees, deemed necessary to confront the Soviet threat during the Cold War.

Traditionalists criticized the UCMJ for softening military justice and importing civilian concepts of law into an environment based on the necessity to maintain good order and discipline as the basis of military effectiveness. But as long as military lawyers remembered that the new protections provided by the UCMJ did not negate the purpose of military law, the military justice system worked.

But as the recent decision by a military judge to waive prison time for admitted deserter Bowe Bergdahl illustrates, Huntington’s military transmutation continues apace. The cause is not so much the shortcomings of the UCMJ but the attitude of an increasing number of military lawyers whose allegiance to a liberal concept of justice trumps considerations of good order and discipline. As one commentator recently noted, even with his time in the hands of the Taliban, Bergdahl will spend less time in prison than a soldier convicted of selling drugs.

Huntington argued that the “expertise” of the military profession was the “management of violence” on behalf of American society. But by acting to expand the “rights” of terrorists and constraining operations against them, military lawyers have infringed on this expertise, especially in the years since 9/11.

Criticism of military lawyers for their role in making it more difficult to execute operations against terrorists notwithstanding, most of us expect them to adhere to the traditional goal of military justice as a means of maintaining good order and discipline. The actions of the military judge in the Bergdahl case suggest this expectation has gone by the wayside.

Things have changed since 1979, when a Marine named Robert Garwood, who claimed to have been captured by the Viet Cong in 1965, was tried and convicted by court-martial for desertion and sedition. The military court rejected Garwood’s claim that he had been tortured and had collaborated with the enemy only to survive, sentencing him to a dishonorable discharge and forfeiture of all pay and allowances during his alleged captivity. The Supreme Court refused to hear his appeal.

There are many similarities between Garwood’s case and that of Bergdahl, but in fact Bergdahl’s case is weaker than Garwood’s. For one thing, Bergdahl pleaded guilty to the charges. Nonetheless, for unexplained reasons, the military judge in the case refused to impose prison time.

At Powerline, Paul Mingeroff has noted the hubris of General Mark Martins, a highly decorated and celebrated brigadier general in the United States Army JAG Corps, who declared that “law embodies and summarizes human experience about right action in a particular context.” That may be true in a perfect world but it fails in the context of military justice and the goal it is designed to serve.

Some will argue that President Trump’s tweets regarding the case constitute “unlawful command influence” (UCI). That may have influenced the sentence. But if Trump is guilty of UCI, then certainly former President Obama is, too, given the Rose Garden event with Bergdahl’s parents and earlier comments by Obama’s national security adviser, Susan Rice, claiming that Bergdahl had “served with honor and distinction.”

The actions of both Obama and Trump helped to politicize the Bergdahl case, but none of that should have negated the purpose of the military justice system. Bergdahl’s actions were premeditated. They also led to American casualties. Nothing in mitigation justifies a decision that mocks not only the practical goals of good order and discipline in the military but also such military virtues as honor and sacrifice.


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