How Bergdahl’s Case Perverts Military Justice

By | 2017-06-02T18:30:05+00:00 November 6, 2017|
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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.

About the Author:

Mackubin Owens

Mackubin Thomas Owens is dean of academics for the Institute of World Politics in Washington DC, a Senior Fellow of the Foreign Policy Research Institute (FPRI) in Philadelphia, and editor of Orbis, FPRI’s quarterly journal. He recently retired after 29 years as Professor of National Security Affairs at the US Naval War College in Newport, Rhode Island. From 1990 to 1997, Dr. Owens was also Editor-in-Chief of the quarterly defense journal Strategic Review and Adjunct Professor of International Relations at Boston University.

Owens is the author of Abraham Lincoln: Leadership and Democratic Statesmanship in Wartime (2009) and US Civil-Military Relations after 9/11: Renegotiating the Civil-Military Bargain (January 2011) and coauthor of US Foreign and Defense Policy: The Rise of an Incidental Superpower (2015) and The Evolution of the Executive and Executive Power in the American Republic (2014).

Before joining the faculty of the War College, Owens served as National Security Adviser to Senator Bob Kasten, Republican of Wisconsin, and Director of Legislative Affairs for the Nuclear Weapons Programs of the Department of Energy during the Reagan Administration. Dr. Owens is also a Marine Corps veteran of Vietnam, where as an infantry platoon and company commander in 1968-1969, he was wounded twice and awarded the Silver Star medal. He retired as a Colonel in 1994.

Owens earned his Ph.D. in Politics from the University of Dallas, a Master of Arts in Economics from Oklahoma University, and his BA from the University of California at Santa Barbara.

  • CincyGal

    A good analysis of what to me was an incomprehensible decision. Given the earlier Rapone scandal at West Point, and now the excusing of desertion in a war zone, I find my confidence in the US Army officer corps to be severely damaged. What I saw was that the result of Bergdahl’s desertion was to put his comrades in great danger, as they risked life & limb to look for him. Is that not why desertion is such a heinous crime? Well, let me rephrase that – why it used to be? In the end, these jokers expect American families to send their young, healthy children into the Army, where they will be subjected to Communist officers, and an excuse-making legal system set up to sneer at the old fashioned code of duty, honor, country, all the while hoping those children return home with the same number of limbs they left with. That no longer looks like such a good deal to me.

  • gabe

    Mr. Owens:

    Spot-on and thanks for the reference to Huntington and his thinking. It is comforting to know that one former infantryman such as I am not alone in perceiving a debilitating and corrosive influence upon our Armed Forces by the “infiltration” of both leftists and leftist *lawfare.*

    I am reminded of some sections of Jack Goldsmiths book on JAG and the War on terror in which HIGH military commanders sought to not only excuse but to JUSTIFY the interference of JAG officers in the actual conduct of military operations.

    My God, can you imagine having to receive approval from some 26 year old JAG Lawyer in order to engage an enemy combatant? Indeed, even Petraeus is quoted as viewing favorably the *ministrations* of JAG officers in guiding the warfighter’s combat actions.

    Then again, that does sum it all up doesn’t it? The *rot* has worked it’s way all the way to the highest echelons of Command; “go along to get along” appears to be the modus operandi of the military careerist.

    Sickening!
    Not only do we have members of the General / Field level staff supporting transgender rights BUT we now have an Officer Corp that is unable (unwilling) to recognize desertion and treason.

    Thank god, I am now too damn old to even consider once again serving!

  • OneTerm4Obama

    Thank you for your service and a spot on assessment!

  • aksdad

    The purpose of prison is to provide a severe consequence or punish someone for an action that harms other people (breaking the law) and remove them from society because they are likely to hurt people again. Hopefully the prisoner can also be rehabilitated and returned to society. It is difficult to conceive of any punishment in an American prison that is equivalent to the 5 years of imprisonment, abuse, and torture Bergdahl suffered in Afghanistan as a natural consequence of his actions. Heaping additional punishment on Bergdahl, whose actions were likely influenced by mental health problems, is not “justice”. It is vengeance.

  • Chris Bray

    “Things have changed since 1979.” Things have changed since 1919, when Woodrow Wilson fully pardoned soldiers who had been sentenced to death by firing squad, responding to an argument from his secretary of war that executing soldiers was savage and atavistic. Pershing wanted authority to approve executions in the field; Wilson refused.

    Then, in World War II, the army alone had 40,000 deserters in the European theater, but executed a grand total of one — Eddie Slovik — in an attempt to send a message to the rest. Slovik nominated himself as the goat by handing a signed declaration of cowardice and refusal to fight to his battalion commander, who handed it back to Slovik and told him to tear it into pieces. Slovik refused, and insisted on giving the army his handwritten confession. More than 39,000 army deserters during World War II got what they wanted: a prison sentence for a couple of years, and a free pass out of mortal danger.

    As for the debate over the purpose and structure of military justice, including topics like command influence, all of that began (at the latest) in, again, 1919, with the Ansell-Crowder dispute, an argument between the army’s acting JAG and permanent JAG over questions like the right of servicemembers to legally trained defense counsel. The 1920 revision of the Articles of War started many of the trends that we see at work today in the military justice system, and would have gone much farther if Crowder hadn’t blocked Ansell’s congressional lobbying effort.

    And then the prohibition on UCI, which predates the UCMJ, followed World War II and the military review of tens of thousands of grossly unfair court-martial verdicts during the war. Congress added a prohibition on UCI to the Articles of War in 1948, two years before the UCMJ.

    The Bergdahl case is the culmination of a century of disciplinary change in the American armed forces. It was the wrong outcome, and a major disappointment, but these are not recent developments.

  • RAS743

    So, the virus affecting the lawyers who decide what tactics we can use in our wars, and thereby affect outcomes, is the same one affecting lawyers who dispense military justice. Got it. We’re doomed.

  • Not sure what I’m supposed to conclude from this piece. Garwood and Berdahl received similar punishments. Maybe things have changed, but the example doesn’t demonstrate that.

  • Cybergeezer

    How easy it is to forget that the DESERTER BERGDAHL was TRADED for 5 MUSLIM TERRORISTS FROM GUANTANAMO!
    By the Commander in Chief:
    B. Hussein Obama.

  • RJ

    “Let’s “civilize” our military!” Who wants “animals” out there destroying and killing everything they come across labeled the enemy? Bring in the lawyers (note the Powerline insertion of the above article), people who “fight” with words, nothing more.

    Let’s place lapel cameras on our cops…recall Obama and his pals watching live video feeds of the Bin Laden assault operation–look at some of those expressions of that picture Obama provided. Lawyers everywhere.

    Hannibal would surely smile at this reality within our American military. Julius Caesar would not tolerate such behaviors within his command nor allow those outside to attempt such a stranglehold on his command.

    Rodney King’s plea “Can’t we all just get along?” is a rallying cry to examine and educate what war is really all about. Funny thing though, real combat veterans already know.

    Who listens to them? All we hear today is a simple “throw away” line: Thank you for your service!

    We’ve hollowed out our principles so much that they can’t stand on their own truths…