Commentary: Bowe Bergdahl and imbalance in military justice system

Over the last few years the U.S. military has been regularly raked over congressional coals regarding its mishandling of sexual assaults within its ranks.

The role of commanders and their incredibly vast power within the military's criminal justice system has stood front and center, with Sen. Kirsten Gillibrand continuing to question why such non-lawyers make all the criminal prosecutorial decisions within the military, with very little formal guidance or constraints. Her proposal to remove the chain-of-command from prosecutorial decisions regarding certain types of crimes (such as sexual assault) has failed for the second year in a row as the military begs for more time to fix itself.

While military leaders protest they will finally improve, the fundamental flaw of the archaic military justice system — the unchecked and vast power it gives untrained and legally inexperienced commanders to practice law — continues its unjust march forward.

The systemic flaws in the military justice system are in stark relief in the current criminal case of Sgt. Bowe Bergdahl, a prisoner of war in Afghanistan for almost five years and released last year as part of a prisoner exchange involving Taliban detainees from Guantanamo Bay. The circumstances of this exchange remain political hot potatoes, with Congress recently threatening to withhold 25 percent of the Department of Defense's funding if it doesn't turn over documents to Congress regarding the Bergdahl swap.

What does this continuing political maelstrom over former GTMO detainees being swapped for Bergdahl's release over a year ago have to do with the structural weaknesses of the military justice system? Plenty, because it demonstrates the military's refusal to recognize checks on the power of its commanders. Apparently assuming that five brutal years as a prisoner of the Haqqani Network (cohorts of the Taliban) wasn't sufficient punishment, the Army recently decided to initiate criminal proceedings against Sgt. Bergdahl for improperly leaving his post in a warzone.

With charges filed ("preferred" in military parlance), Bergdahl's case now proceeds to a pro forma preliminary hearing set for September, where a hearing officer will make non-binding recommendations. This advice will land on the desk of the responsible convening authority(as commanders with prosecutorial power are called), who will make the ultimate call whether to send the case to court-martial. This commander — Gen.eral Mark A. Milley — can also take numerous actions regarding the case up to this point, including striking a deal with Sgt. SergeantBergdahl to administratively separate with a general discharge, etc.

Yet per the military justice system's rules regarding conflicts of interest, Gen. Milley is unfit to make such decisions. Gen. Milley is no ordinary Army four-star — he was just nominated by President Obama to be the next Army chief of staff. He won't assume that new role, however, until the Senate confirms him, for which no date has yet been set. And it may take a while, given that Sen. John McCain, the chairman of the Senate Armed Services Committee (which votes on Milley first), has stated that his committee is prepared to fully investigate the Bergdahl case.

And therein lies the rub: how can Gen. Milley impartially decide whether to court-martial Sgt. Bergdahl, or to accept Bergdahl's potential offer of separation in lieu of trial, or plea deal or other disposition, if the very Senate — for whom the name "Bergdahl" is a call to acrimonious arms — must vote on his assumption of the number one job in the Army? You don't think Congress would deny Milley his promotion because a few senators take issue with his decision in the Bergdahl case? Ask Air Force Lt. Gen. Susan Helms, who saw her nomination to Space Command tubed because of the Senate's negative view of a call she made as a convening authority in a sexual assault case.

But when Sgt. Bergdahl asked for a new convening authority, Gen. Milley refused to recuse himself, despite the obvious conflict of interest. Now the issue sits at the Court of Appeals for the Armed Forces, the highest military court. This court is usually loathe to weigh in before a case is before it on appeal, which could be years down the line, or avoided all together if Sgt. Bergdahl accepts a negative administrative discharge instead of trial.

Rachel E. VanLandingham is an associate professor of Law at Southwestern Law School.

Photo Credit: Mark Wemple/Southwestern Law School

It is deeply disturbing that the next Army chief of staff could retain feels there's absolutely nothing improper with him retainingsole and full prosecutorial power in Sgt. Bergdahl's case, despite the case being hopelessly entangled in political controversies – despite General Milley being dependent on the key players in these controversies to grant him the highest position in the U.S. Army.

This is symptomatic of the military justice system's over-reliance on commanders without commensurate real checks on their vast power. The system's investiture of near plenary authority in commanders carries few constraints and lacks even professional responsibility rules and training that prosecutors are governed by in the civilian world. Our servicemen and women deserve better.

Rachel VanLandingham is an associate professor of law at Southwestern Law School and served as an active-duty judge advocate in the Air Force.

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