Military injustice: Politics, machismo, structural defects

Apparently if you’re a Navy SEAL you can literally get away with murder, but if you’re a young mentally ill Army solider in the infantry who spent almost five years being tortured in enemy captivity, you’ll face up to life imprisonment at a general court-martial. Both the case of the Navy SEALs who allegedly abused an Afghan detainee so severely that he later died, and the tragedy of a deeply troubled private (now sergeant) who thought wandering off his base could help his fellow soldiers, expose deep flaws in the American military justice system.

The current criminal case of Sgt. Bowe Bergdahl is alarming because it highlights how vulnerable the military justice system is to inappropriate Congressional pressure. The generals and admirals in whom the greatest prosecutorial and quasi-judicial authority is vested not only must be confirmed by the Senate for their next promotion, but three and four-star generals must receive Senate approval for their next assignment as well. This approval process starts, and can easily end, in the Senate Armed Services Committee.

{mosads}Hence when that committee’s chairman, Sen. John McCain (R-Ariz.), publically threatens that he’ll hold hearings unless Bergdahl is punished—and makes such a threat before the general charged with deciding whether to prosecute Bergdahl has made his decision—justice is perverted. Four-star generals aren’t stupid, and they watched as an Air Force general’s nomination for her next assignment was withdrawn in 2013 after being blocked in the Senate because one senator was unhappy with one of the general’s military justice decisions. Plus every general and admiral knows that McCain’s powerful committee butters the military’s budgetary bread. So, it’s in everyone’s interest to keep him happy.

McCain isn’t alone in his willingness to improperly influence prosecutorial decisions in the military. Members of the House Armed Services Committee recently crowed that they “will ensure that standard procedures are properly implemented and administered, and that Sgt. Bergdahl’s behavior is adjudicated as required.” The problem with that statement is that Congress’s oversight role is not a real-time supervisory one, replete with the ability to dictate specific outcomes in specific cases. The daily oversight of ongoing criminal cases is already ably performed by the services’ courts of criminal appeals and the Court of Appeals for the Armed Forces.

Hence this memo to Congress:  Keep your mouth shut regarding on-going military cases, because even if the general in the Bergdahl case had wanted to court-martial Bergdahl all along, now there is a real legal issue regarding Congressional misconduct that could, and frankly should, fatally taint the case on appeal.

Real oversight means monitoring the total health of the military justice system and making systemic changes when warranted, such as the last few years’ worth of statutory changes regarding how sexual assault allegations are handled in the military. Yet such largely superficial changes barely scratch the surface of the pervasive accountability problems in the military justice system, as amply demonstrated by the Navy SEAL case. While Congress has been clamoring for Bergdahl’s head on a platter, the SEAL command has continued to do what it’s infamous for among those who have served around them:  Sweeping criminal misconduct under the rug, and promoting its thugs instead of court-martialing them.

The reason the SEALs weren’t court-martialed for detainee abuse and murder is that the military justice system, even more so than civilian criminal justice systems across America, lacks transparency, oversight, and accountability regarding how misconduct is handled. The weakest rung of the system is the initial disposition decision, which is often made, as in the SEAL case, echelons below the three and four-star general level. These senior officers can’t make a decision whether to send a service-member to a general court-martial, such as in the Bergdahl case, if the lower-level commander doesn’t place the allegations into the criminal prosecution track to begin with. And they don’t have to. They also don’t have to document, in most cases, why they so decided and even when they do, no one cares, because the commander is given almost total deference when dealing with misconduct—despite also being given little formal guidance and training on how to exercise such power. Their lawyers frequently lack independence and are neutered in their ability to check bad decisions since their advice is purely that, advice.

Why doesn’t Congress, instead of trying to unlawfully influence individual cases, start enacting some real reform regarding transparency into, and accountability for, prosecutorial discretion in the military?

VanLandingham is associate professor of Law, Southwestern Law School; vice president, National Institute of Military Justice.  For 2006-2010 she provided operational legal advice to military commanders as chief, International Law, U.S. Central Command.