Has the President Exercised “Unlawful Command Influence” Over the Sgt. Bergdhal Case? by THE HONORABLE EDWARD TIMPERLAKE
It may come as a surprise to many spinning pundits, but the Uniform Code of Military Justice is codified and if applied fairly and with transparency, it does lead to justice.
US Army Sgt Bowie Bergdhal, just as if he was being investigated as a civilian in our “law and order” justice system, is innocent until proven guilty.
The Pentagon spokesman and NSC Director Rice have both commented on the case:
“Both Rice and Pentagon spokesman Rear Adm. John Kirby said only Bergdahl knows the full truth of what happened and why.
This is a young man whose circumstances we are still going to learn about,” she told CNN in an interview.
“He is, as all Americans, innocent until proven guilty.
He’s now being tried in the court of public opinion after having gone through enormously traumatic five years of captivity.”
Furthermore, NSC Director Ambassador Susan Rice takes the case to a logical conclusion.
“If the military finds Bergdahl deserted, he’ll face consequences, she said.”
http://www.cnn.com/2014/06/06/politics/bowe-bergdahl-release/
But not so fast.
In order for Sgt Berghal to be charged in Military Justice (UCMJ) up to a General Court Martial, which is where a charge of desertion would be tried, there must be an “Article 32” investigation.
UCMJ-Article 32 Investigation:
No charge or specification may be referred to a general court-martial for trial until a through and impartial investigation of all the matters set forth therein has been made.
This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
http://usmilitary.about.com/library/milinfo/ucmj/blart-32.htm
Any attempt to take Sgt. Bergdhal to trial will immediately come into collision with a significant check and balance in the UCMJ, the need to not taint the process with “Unlawful Command Influence.”
Often that provision is used effectively by a Military Lawyer defending a charged serviceman trying to get a case against their client thrown out because someone in the Chain-of Command has prejudiced the case. A great quote comes to mind-“there would not be a Court-Martial if the person was innocent.”
Fortunately that is both a cliché and hopefully never true. However, the reverse can also be subtly felt with improper influence determining the need for a not guilty verdict.
Unlawful Command Influence
Unlawful Command Influence (UCI) has frequently been called the “mortal enemy of military justice.” UCI occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.
Consequently any U.S. Army Officer serving on a Court-Martial would most certainly know of the expressed opinion of their Commander-in Chief and his Senior National Security officials. This puts Big Army in a bad situation.
From the first White House Press release;
Today the American people are pleased that we will be able to welcome home Sergeant Bowe Bergdahl, held captive for nearly five years. On behalf of the American people, I was honored to call his parents to express our joy that they can expect his safe return, mindful of their courage and sacrifice throughout this ordeal.
And the Presidents own words about the release of Sgt. Bergdahl:
His parents thought about him and prayed for him every single day, as did his sister Sky, who prayed for his safe return.
He wasn’t forgotten by his community in Idaho, or the military, which rallied to support the Bergdahls through thick and thin. And he wasn’t forgotten by his country, because the United States of America does not ever leave our men and women in uniform behind.
The President as Sgt. Bowe Bergdahl’s Commander-in-Chief has generated a major problem for the possible course of military justice.
And as a Harvard trained lawyer, he undoubtedly knows the consequences of his actions.
And echoing her bosses statements, National Security Director, Ambassador Susan Rice, underscored the message:
“Sgt. Bowe Bergdahl had served in the military with “honor and distinction,” and she recently doubled down on her opinion.
Unless President Obama distances himself from his most Senior National Security Advisor’s words, they will stand as his Administration’s official position on Sgt. Bergdahl’s conduct while in uniform.
Again, Sgt Bergdahl is 100% innocent until proven guilty, but the NSC Director’s words about facing consequences of desertion rings hollow on any quest for true accountability under the UCMJ.
An Article 32 investigation must determine the facts, and it will be interesting to see if it includes the words “Sgt Bergdahl served in the military with honor and distinction?”
Doing an investigation with politically charged public babbling as a backdrop by a team that should know better puts the US Army in a terrible position and perverts the course of justice.
Innocent until proven guilty is a crucial principle; exercising undue or unlawful influence from the Commander-in-Chief undercuts the process and calls into question the ability to determine guilt in a fair and equitable manner.
After all if you have already been declared to “serve with honor and distinction,” why would you be tried for desertion?
The Commander-in-Chief has put the US Army in a damned if you do and damned if you don’t situation.
The Honorable Edward Timperlake is a Senior Fellow, Technology Assessment and Security, International Assessment and Strategy Center; and recently served as Director, Technology Assessment, International Technology Security (OSD). He was the DOD representative to the National Counterintelligence Executive Committee (NCIX-DNI) and principal DOD liaison to FBI for their “Critical National Asset” project. He traveled throughout Iraq to catalogue contraband conventional weapon, and he served as a member of the professional staff of the Committee on Rules, U.S. House of Representatives, assigned by the Chairman to be his investigator on illegal foreign money contributions to political parties.
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