Abrams, Bergdahl, and McCain

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Abrams, Bergdahl, and McCain

(Photo: Reuters)

One man’s justice is another man’s injustice.
— Ralph Waldo Emerson, Essays, First Series

December 14, 2015, was a good day for John McCain. It was a less good day for Sergeant Bowe Bergdahl, General Robert Abrams, and the military justice system. It was a middling sort of day for the U.S. Constitution, although it hadn’t been directly involved except insofar as Mr. McCain showed once again that the kind of due process the Constitution contemplates can prevent desired outcomes in some criminal proceedings.

John McCain’s problem with the Constitution did not start with Bowe Bergdahl. It first came to light when Dzhokhar Tsarnaev, one of the Boston Marathon Bombers, was apprehended. On April 23, 2013, eight days after the Boston bombing took place and within a few hours after Tsarnaev was captured, Senators John McCain and Lindsay Graham issued a statement that appeared on Mr. Graham’s face book page in which they said, in part: “It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans. Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. . . . The least of our worries is a criminal trial that will likely be held years from now. Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel.”

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Mr. McCain’s next encounter with the criminal justice system occurred when Sergeant Bergdahl was returned to the United States in a prisoner exchange in which five Guantanamo prisoners were transferred to Qatar. Upon Sergeant Bergdahl’s return to this country, he was charged with desertion and misbehavior before the enemy. Since he was a sergeant in the U.S. Army, he was subject to the Uniform Code of Military Justice. Those rules are designed to comport with the Constitutional rights given every citizen and set out the procedures to be followed by the military. First, the accused is subject to an Article 32 proceeding that is in the nature of a preliminary hearing. At its conclusion, the officer presiding over the Article 32 proceedings makes a recommendation to the officer responsible for convening a court martial as to the type of court martial the presiding officer believes appropriate. That officer then decides whether it is to be a General Court Martial with the possibility of a life sentence or a Special Court Martial with the maximum possible sentence of one year in prison.

Following the filing of the charges against Sergeant Bergdahl, Lt. Col. Mark Visger was appointed to conduct the Article 32 hearing. At the hearing, Major General Kenneth Dahl, the investigating officer, testified, among other things, that jail time for Sergeant Bergdahl would be inappropriate. At the end of the proceedings, Col. Visger recommended to General Robert Abrams, the officer responsible for deciding what kind of a court martial to convene, that a special court martial take place.

When news of Col. Visger’s recommendation was made public, Senator McCain, who had heard none of the evidence, let it be known that military justice did not matter to him. He said that if there were no punishment for Sergeant Bergdahl, the Senate Armed Services Committee of which Senator McCain is chair, would hold its own hearing. As he explained, without waiting to find out what facts might emerge at a trial: “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 fact that no soldiers had been killed or wounded while searching for Sergeant Bergdahl did not faze Senator McCain.

Senator McCain’s committee cannot increase whatever punishment the duly constituted court believes appropriate. But it decides on promotions and assignments for high-ranking military officers like General Robert Abrams. General Abrams is the general responsible for deciding whether to follow the recommendations of Col. Visger. John McCain and the armed services committee are the ones that can affect General Abrams’ future in the military. On December 14th General Abrams announced his decision. Sergeant Bergdahl will face a general court-martial and the possibility of life in prison. That was good news for everyone except Sergeant Bergdahl and, perhaps, General Abrams. It was good news for the Armed Services Committee since it will not have to hold a hearing. It was sort of good news for General Abrams since he will not incur the wrath of Senator McCain. On the other hand, General Abrams will have to live with the fact that some people will say he decided to convene a General Court Martial because of the pressure applied by Senator McCain even though his decision may, in fact, have not been influenced by the senator’s threats. It is clearly bad news for (a) Sergeant Bergdahl who may end up spending his life in prison and (b) for the military justice system that may have been compromised because of pressure applied by a senator.

Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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