Thursday, June 5, 2014

Did Bergdahl Desert?

One of the main side stories of the prisoner swap surrounds the issue of whether Sgt. Bergdahl is a deserter. Several former military members have spoken out strongly indicating  their belief that Bergdahl did in fact walk away from his post. That remains to be investigated by the military, and Section 85 of the Uniform Code of Military Justice is not as cut and dried as it may appear. It will be very interesting to see how the military handles this case given the notoriety that has attached to it. Stay tuned.

Desertion

Desertion is an aggravated type of Unauthorized Absence (UA) or Absence Without Leave (AWOL).  Military prosecutors charge desertion under UCMJ Article 85. 

Article 85 provides:

Any member of the armed forces who:

(1)  without authority, goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; or

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service

The charge of desertion is more aggravated if it is committed in time of war or to avoid hazardous service. 

The key to any desertion charge is the intent or mental state of the service member.  Since it is usually difficult to prove what someone is actually thinking at any given time, prosecutors will look to circumstantial evidence to prove the intent to remain away permanently.   Factors like destruction of uniforms or an identification card, changing a name or SSN, remarks of intent, failure of the member to turn himself in when he had the opportunity to do so, moving to foreign countries, and remaining absent for many years are the types of circumstantial evidence that can help to establish intent to remain away permanently. 

Almost always, the best course of action for a member in an unauthorized absence status is to return to military authority voluntarily for resolution of the situation.   Very few people can live an entire lifetime in an unauthorized absence status without someday being forced to answer to authorities.  It is particularly difficult today, with the advent of pervasive and interconnected databases that reflect unauthorized absence status.   

Most unauthorized absence cases are resolved administratively.  However, a command always has the option of resolving more aggravated cases at court-martial.  Many unauthorized absence cases have important extenuating and mitigating circumstances.  When presented properly, by a competent military lawyer, such circumstances can reduce punishment or lead to a better characterization of discharge in the event of administrative discharge. 

Wednesday, June 4, 2014

The Bergdahl Scandal

I barely know where to begin to comment on the five for one trade that President Obama made with the Taliban to secure the release of Sgt. Bowe Bergdahl. Aside from the fact that the President clearly violated a law that he himself signed requiring 30 day notification to relevant committees in Congress when such releases are contemplated, the fact that he would "celebrate" this action in the Rose Garden and then send Susan "Pinocchio" Rice out to once again lie to the American people is mind boggling. What is this man thinking about?

Let's put aside for a moment the allegations about whether Sgt. Bergdahl deserted (although they seem to be quite real based on statements of troops who were there and what the Army has said). Let's also put aside whether it made sense to turn loose five Taliban higher ups who are clearly going to get back into the fray rather than taking up golf or stamp collecting. We supposedly live in a constitutional democracy with three co-equal branches of government. The President at one time was a lecturer on the constitution, so one would think that he is familiar with the details of that document. Reality seems to be indicating something else. Judging by the universally negative reaction to this episode, particularly from high ranking Democrats such as Sen. Diane Feinstein and constitution scholar Jonathan Turley, there is real and valid concerns about the President ignoring the law. Even the N.Y. Times editorial page has circled the wagons and is playing zone defense. The President is clearly trying to make the Presidency a bit more co-equal the the legislature and the judiciary, and that is not the way things are supposed to work.

Perhaps we need one of the" right wing nut jobs" like Sen. Ted Cruz to stand up and call Obama to account. Even the mainstream media that almost blindly supports and makes excuses for Obama would be hard pressed to justify a cogently reasoned attack on him. Someone needs to draw a red line for Obama.

Commentary Magazine

Contentions

Obama’s Dishonorable Deal


Even I, a consistent and at times quite a harsh critic of President Obama, have been taken aback by the latest turn of events.
To recapitulate: Mr. Obama released five high-value, high-risk terrorists from Guantanamo Bay in exchange for Sgt. Bowe Bergdahl, who it appears was a deserter–and has been known to be a deserter for a couple of years. People who served with him are calling on the military to court martial Bergdahl. Media reports indicate that at least six Americans died  in their efforts to rescue him.
In de facto negotiating with the Taliban and acceding to their demands, the president violated a law he signed, requiring him to inform Congress 30 days in advance of any prisoner release from Guantanamo Bay. And the effect of this deal will be to incentivize the capture of more Americans, since it obviously pays dividends.
Yet the Obama administration took this humiliating accommodation and portrayed it as a victory of American values and purpose. The president held a Rose Garden event on Saturday extolling the deal. National Security Adviser Susan Rice referred to it as an “extraordinary day for America” that deserves to be “celebrated.” And Ms. Rice said of Sgt. Bergdahl, “He served the United States with honor and distinction.”
Really, now? A deserter who, according to the New York Times, “left a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life,” is a person who served with “honor and distinction”? By what ethical calculus does she claim this to be so?
This illustrates quite well the fundamental differences the president and his aides and I have. My response to what has occurred is not just intellectual but visceral. I consider what occurred, when everything is taken into account, to be substantively indefensible and morally dishonorable. The president, in my estimation, has rendered a great service to our enemies, and they know it. (Mullah Omar, the head of the Taliban, hailed the release of the top five Taliban commanders from Guantanamo as a “great victory” for the mujahideen of Afghanistan.) The president’s decision may well endanger American lives down the road. And his administration has elevated an apparent deserter–one whose actions were reported on in the past (see this 2012 Rolling Stone article by Michael Hastings) and who is responsible for the death of fellow soldiers who tried to rescue him–into a hero.
This strikes me as morally grotesque. Yet for Mr. Obama and some of those in the progressive movement, the events of the last few days count as a fantastic achievement, one worth venerating and exalting.
Years ago John Gray wrote a book called Men Are from Mars, Women Are from Venus. In this case, it’s the president and I who occupy different worlds, including different moral worlds. Mr. Obama is proud of a series of acts that I would think he would, after careful reflection, feel regret for and even (when it comes to his administration lionizing Sgt. Bergdahl) some shame.
At times individuals interpret the same events at such different angels of vision that their actions are nearly incomprehensible one to another. I will confess that more than I ever imagined, I have that feeling with my president.