Top Military Lawyer: Army Bowed to Republican Political Pressure in Court-Martialing Bowe Bergdahl

December 24, 2015
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Rachel VanLandingham

associate professor of law at Southwestern Law School. She is a 20-year veteran of the U.S. Air Force, where she served as a military lawyer. From 2006 to 2010, she served as chief legal adviser for international law to U.S. Central Command under Generals Dempsey and Petraeus.

Army Sergeant Bowe Bergdahl was arraigned this week on charges related to his disappearance from a U.S. base in Afghanistan in 2009. Bergdahl was captured by the Taliban and held for five years, suffering extensive torture. The Taliban freed him last year in exchange for five Guantánamo prisoners. Bergdahl has said he walked off his post in an attempt to reach another U.S. base and report wrongdoing in his unit. Two independent army experts, including the officer who investigated the case, recommended against any jail time. But earlier this month, Army General Robert Abrams rejected their advice and ordered Bergdahl court-martialed on charges of desertion and misbehavior against the enemy. We are joined by Rachel VanLandingham, a former top Army lawyer who says General Abrams bowed to Republican-led political pressure. A 20-year veteran of the U.S. Air Force, VanLandingham served as chief legal adviser for international law to U.S. Central Command under Generals Martin Dempsey and David Petraeus. She is now associate professor of law at Southwestern Law School.


TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Is the military justice system bowing to political pressure while covering up major crimes? We look today at two cases in the U.S. military with very different outcomes. The first is the most well known, involving the alleged desertion by a U.S. soldier in Afghanistan. The second case involves the abuse of prisoners in Afghanistan that resulted in death. This case has received far less attention, and unlike the desertion case, there have been no serious charges, raising questions about how the military justice system handles crimes within its ranks. In the first case, Army Sergeant Bowe Bergdahl was arraigned this week on charges related to his disappearance from a U.S. base in Afghanistan in 2009.

COL. DANIEL KING: Today, Army Judge Colonel Christopher T. Fredrikson convened an Article 39(a) arraignment hearing, December 22nd, on Fort Bragg in the case of U.S. Army v. Sergeant Robert B. Bergdahl.

AMY GOODMAN: Bergdahl was captured by the Taliban and held for five years, suffering extensive torture. The Taliban freed him last year in exchange for five Guantánamo prisoners. Bergdahl has said he walked off his post in an attempt to reach another U.S. base and report wrongdoing in his unit. He has been ordered to a general court-martial, where he faces a possible life sentence.

While Bergdahl is being court-martialed, a group of Navy SEALs, who allegedly beat an Afghan detainee to death, were not. Just days before Bergdahl’s arraignment, a New York Times exposé revealed the killing and a possible cover-up that goes up the chain of command. In May 2012, members of a Navy SEAL team abused detainees at an outpost in southern Afghanistan. An internal report says three Navy SEALs dropped heavy stones on the detainees’ chests, stomped on their heads and poured bottles of water on their faces in a modified form of waterboarding. One of the detainees was so badly beaten that he eventually died from his injuries. Four U.S. soldiers reported witnessing the abuse, but Navy commanders chose a closed disciplinary process usually reserved for minor infractions. The SEALs were cleared of any wrongdoing. Two of the SEALs implicated in the abuse of the detainees and their lieutenant have since been promoted.

Bowe Bergdahl has received far different treatment. His arraignment this week came after Army General Robert Abrams ordered him court-martialed on charges of desertion and misbehavior against the enemy. Abrams’ decision came despite the recommendations of two independent Army experts. The Army officer who led the Bergdahl investigation, Major General Kenneth Dahl, testified that imprisoning Bergdahl would inappropriate after years of Taliban captivity and torture. Dahl also raised concerns about Bergdahl’s mental health, saying he may have been delusional, but that his beliefs about wrongdoing in his unit were sincere. The Army lawyer who presided over Bergdahl’s preliminary hearing also recommended against prison and said Bergdahl should go before a special court-martial where his maximum possible punishment would be a year of confinement.

Critics say General Abrams may have bowed to political pressure. Republicans have denounced Bergdahl since the prisoner swap was reached. Senate Armed Services Committee chair, Senator John McCain, has vowed to hold hearings if Bergdahl isn’t punished. A recent House Republican probe said the Taliban prisoner exchange violated federal law. And on the campaign trail, front-runner Donald Trump has called Bergdahl a traitor who should be executed. The search to find Bergdahl involved thousands of soldiers, and Republicans have said several were killed in the process. But the Army’s investigation found no evidence to support that claim. And while Bergdahl faces continued Republican-led attacks, the Navy SEALs story has been met by a wall of official silence.

For more, we’re joined by a former top military lawyer who has criticized the court-martialing of Bowe Bergdahl while calling for the Navy SEAL abuse case to be reopened. Rachel VanLandingham is a 20-year veteran of the U.S. Air Force, where she served as a military lawyer. From 2006 to 2010, she served as chief legal adviser for international law to U.S. Central Command under Generals Martin Dempsey and David Petraeus. She is now associate professor of law at Southwestern Law School.

Welcome to Democracy Now! It’s great to have you with us.

RACHEL VANLANDINGHAM: Thank you, Amy. It’s great to be here. And I’d like to say thank you so much to all the brave young men and women that are currently serving in uniform far from home during these holidays. Thank you.

AMY GOODMAN: Well, Professor VanLandingham, why don’t you lay out for us this contrast between these two cases—one that’s extremely well known, Bowe Bergdahl, and another that many say has been covered up, the case of the Navy SEALs in the death of an Afghan detainee, not to mention the torture of others?

RACHEL VANLANDINGHAM: Amy, thank you. I think you laid out the facts well at the beginning of this segment. The concern with Sergeant Bergdahl’s case is that it’s irrevocably tainted by the improper and, I think, illegal congressional statements, congressional pressure, put on the military and the military’s top leaders regarding disposition in a current pending military case. When you have the chairman of the Senate Armed Services Committee, John McCain, threatening to hold hearings if Sergeant Bergdahl isn’t punished, at the same time the four-star general—who, by the way, must go before the Senate Armed Services Committee for reconfirmation for his next assignment—when Senator McCain is threatening to hold hearings if Sergeant Bergdahl isn’t punished, it’s unclear how that general can make any other decision besides to prosecute Sergeant Bergdahl. And Sergeant Bergdahl, of course, deserves individualized justice, justice that’s free from pressure from Capitol Hill. Of course, Congress has oversight of the military justice criminal system, and they’re charged by the Constitution to make rules governing the regulation and government of the military, but that’s systemwide. They should not be making public statements demanding a particular outcome in an ongoing—an outcome in an ongoing criminal case.

AMY GOODMAN: So you think Bowe Bergdahl should not be court-martialed?

RACHEL VANLANDINGHAM: Frankly, personally, I do not think he should be court-martialed. The issue isn’t whether he can be. There’s certainly enough evidence that he could be. It’s the issue is whether he should be. And we’ll never know whether he received fair and appropriate consideration for the extenuating and mitigating circumstances, because of the avalanche of congressional pressure. It was not just Senator McCain. The Office of Legislative Affairs, in the Army legislative affairs, has received numerous phone calls and letters since Sergeant Bergdahl was transferred back to U.S. custody, demanding particular outcomes in his case. And that’s just—it’s really unheard of, and it irrevocably taints the fairness of that decision.

But on that decision, there are numerous reasons why an individual should be court-martialed. There are purposes of punishment, and the commander here, General Abrams, had to weigh those purposes of punishment. And it comes down to weighing—to balancing the scales. Sergeant Bergdahl was—the Army was criminally negligent in bringing Sergeant Bergdahl and enlisting him and putting him on active duty. He had been discharged two years prior by the Coast Guard for mental health issues. So what does the Army do? They enlist him, and they send him to an observation post out in the middle of nowhere in Afghanistan on a combat mission. The Army’s own psychiatrists have diagnosed Sergeant Bergdahl as having suffered a—what they call a severe mental disease or defect at the time that he made the decision—the criminal decision—to leave his post.

But you weigh that decision and those factors and, of course, the huge amount of impact that was felt on the unit, the thousands of men and women that you mentioned went searching for Sergeant Bergdahl—you weigh that against the over—the almost five years of torture and the lifelong pain and suffering and impact that Sergeant Bergdahl will suffer because of his—because of his lack of judgment at that time, the lack of judgment that apparently was very much influenced by his mental health condition, it just seems like the purposes of punishment, such as deterrence, rehabilitation, incapacitation and retribution, simply are not there. Rehabilitation and incapacitation are off the table. He doesn’t need to be kept away from society because he’s a threat to society. So this case comes down to deterrence, Amy, and retribution.

The loudest deterrent message that could ever be sent was already sent five years ago when, within a few hours of Sergeant Bergdahl leaving his base, he was captured and subject to horrendous torture. One of the Survival, Evasion, Resistance and Escape professionals that testified at his preliminary hearing said that Sergeant Bergdahl suffered the worst conditions in over 60 years of any military prisoner, American military prisoner, and that he will—and that he will have irrevocable, lifelong damage because of that. He also testified that Sergeant Bergdahl honorably tried to escape over 10 times while he was in captivity. And it’s part of the American soldier’s code of conduct to attempt escape as many—and to resist capture while you are—while you face captivity. And Sergeant Bergdahl honorably did that. So when you balance those scales, it comes down to the sole reason to punish, and therefore criminally prosecute, Sergeant Bergdahl is retribution. It’s eye for an eye. It’s just desserts. And hasn’t Sergeant Bergdahl faced just desserts with over five years—almost five years of torture?

But, however, that question is almost mooted, because one can never—can’t separate the congressional pressure and the public calls for Sergeant Bergdahl’s head made by Congress, Congress that controls the purse strings for the Department of Defense and for the Army, never mind controls the personal fate of the general that’s deciding Sergeant Bergdahl’s fate. You can’t—you can’t separate the two. So it seems like it is tainted. And I do hope the Court of Appeals for the Armed Forces, who is appropriately charged with daily oversight of the military justice system—I do hope that they will eventually find that there has been such improper pressure in this case that justice simply cannot be meted out. Even if General Abrams all along wanted to court-martial Sergeant Bergdahl, that decision is not made in a vacuum, and it can’t be separated from Capitol Hill’s meddling.

AMY GOODMAN: Season two of the popular podcast Serial centers on the story of Army Sergeant Bowe Bergdahl. The podcast’s producers teamed up with filmmaker Mark Boal, writer and producer of The Hurt Locker and Zero Dark Thirty. He’s working on a film about Bergdahl and had amassed nearly 25 hours of recorded telephone conversations, which he made available to Serial. In this clip, Bergdahl explains to him that he walked away from his outpost in Afghanistan to set off an alert called a DUSTWUN, or duty status-whereabouts unknown, set off when a soldier goes missing. Bergdahl explains he wanted to call attention to bad leadership in his unit.

BOWE BERGDAHL: And what I was seeing, from my first unit all the way up into Afghanistan, alls I was seeing was, basically, leadership failure, to the point that the lives of the guys standing next to me were literally, from what I could see, in danger of something seriously going wrong and somebody being killed. Now, as a private first class, nobody is going to listen to me.

MARK BOAL: Of course.

BOWE BERGDAHL: Nobody is going to take me serious if I say an investigation needs to be put underway, that this person needs to be psychologically evaluated.

MARK BOAL: Right.

BOWE BERGDAHL: A man disappears from a TCP, and a few days later, after DUSTWUN is called up, he reappears at a FOB? Suddenly, because of the DUSTWUN, everybody is alerted. CIA is alerted. The Navy is alerted. The Marines are alerted. Air Force is alerted. Not just Army.

AMY GOODMAN: Now, that’s Bowe Bergdahl speaking to Mark Boal. I want to turn to another clip from the popular podcast Serial. In season two, episode two, filmmaker Mark Boal asks Bowe Bergdahl how he explained to the Taliban why he walked away from his outpost.

BOWE BERGDAHL: So I told them I basically was fed up with the commanders. You know, you have to remember, this is kind of going through—this is being filtered to the point that, you know, I’m trying to get guys who barely speak English to understand what I’m—you know, what I’m saying.

MARK BOAL: Yeah, totally.

BOWE BERGDAHL: So, the feeling was basically along the lines that, you know, I was fed up for American commanders because they were like disrespectful. But that didn’t work, because they didn’t understand what "disrespectful" was. So I came up with "rude," and they seemed to understand what "rude" was, for some strange reason.

AMY GOODMAN: Later in the Serial podcast, we hear from a member of the Taliban. This is Mujahid Rehman describing his first impressions of Bowe Bergdahl in captivity.

MUJAHID REHMAN: [translated] He couldn’t even eat. He couldn’t drink nor sleep. And then, because he was thinking that—what type of people we might be, and what are we going to do with him. Are we going to kill him? And were we going to behead him? Or, what are we going to do with him? So, that was his situation. He was very scared and weak and confused.

AMY GOODMAN: So, Professor Rachel VanLandingham, talk about the significance of what we’ve just heard, these excerpts of the Serial podcast.

RACHEL VANLANDINGHAM: Well, Amy, I think the significance will be—will be seen during Sergeant Bergdahl’s court-martial this upcoming year. It’s hard to put those totally in context. They do underscore the motive that the investigating officer testified to at the preliminary hearing—that is, that the motive was that Sergeant Bergdahl was afraid for his unit, that he wanted to call attention to leadership failures that he thought endangered his unit. Of course, that does not excuse his decision to do it by endangering his unit, but that has to be weighed against his five years of captivity and his mental health.


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