Posted on Jun 21, 2015
Commentary: Bowe Bergdahl and imbalance in the military justice system. What do you think of the author's argument?
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Rachel VanLandingham is the author of a recent commentary in the Military Times. She writes:
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 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.
http://www.militarytimes.com/story/opinion/2015/06/21/bowe-bergdahl-sexual-assault-military-justice-system-imbalance/28982701/
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 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.
http://www.militarytimes.com/story/opinion/2015/06/21/bowe-bergdahl-sexual-assault-military-justice-system-imbalance/28982701/
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Edited >1 y ago
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Responses: 13
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The fact that somebody who has no idea the gravity of walking off your post in war, can write an article like this and be taken seriously proves why UCMJ needs to be left alone.
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First off, the author paints with too broad a brush, as if there were just a bunch of nutty Colonels and Generals running roughshod administering justice, hanging troops, ignoring the law and otherwise being bad. Nonsense and Baloney. I was a JAG for most of my career and every single General Office or Colonel that I had discussions with regarding legal matters paid extremely close attention to all the information submitted for review and listened to my opinion and generally tended to follow my legal recommendations. I've also had experience as an Area Defense Counsel where those same level commanders paid very close attention to what I've said and they've gone along with my analysis and recommendations over their own Staff Judge Advocate. This is healthy. GCMs and SpCMs are not supposed to be rubber stamps -- but weak commanders with shifty, weasel JAGs will get led to making bad decisions and that is what we hear about. The author also fails to understand the significance of military justice being a global, world-wide justice system. We'd had courts-martials everywhere the DoD is located - aboard ships, remote locations, war zones and on. The civilian justice system is too overwhelmed and there is simply no way for inexperienced person to understand the importance of the system. Politicians see one particular area and want to tear it all down - a system as old as the USA itself. Instead it'd be heaps smarter to roll with it and create a "Special Victims" unit and all personnel involved go to a special Military court in DC - regardless of where the offense occurred. You can train and create special prosecutors and investigators and you can monitor the results in "real time." But you don't close a system and then cobble together some 20 second fix. That isn't law, it's politics and the DoD doesn't need political fixes from a outfit that can't do it's job (Congress).
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LTC(P) (Join to see)
Well said you took all my points I was going to mention. Commanders are who are ultimately held responsible for with her unit does your fails to do it make sense to hold them accountable for things like this as well
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If I was given an option of military justice versus civilian justice, if I was innocent I would choose the military. If guilty I would choose civilian.
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Sgt Aaron Kennedy, MS
The first thing I thought about regarding Civilian Justice System was "Whose got the better lawyer?" - "Who has the most money?"
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LTC Bink Romanick
What you obviously didn't consider is that civilians have control over the military. From the chatter going around there was no discipline on that base and many others did walarounds.
Civilians have every reason to be critical, they pay our salaries.
Civilians have every reason to be critical, they pay our salaries.
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Sgt Aaron Kennedy, MS
LTC Bink Romanick No doubt. My stance is pro-Oversight. As it stands, I think we have sufficient oversight in the UCMJ, however that doesn't mean there can't be tweaks (as I allude to in my own post). On the civilian side, we need major overhauls. Political influence is far more rampant on that side, and Oversight is harder to come by and much slower to exercise.
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