Bergdahl Lawyers Up

Via This Ain’t Hell, according to a report in the Christian Science Monitor, Bowe Bergdahl has engaged the services of Eugene Fidell to represent him during the investigation surrounding the circumstances of his capture.

Mr. Fidell has been a full-time lecturer at Yale for the past five years, and he served in the US Coast Guard. He is the co-founder of the National Institute of Military Justice and heads the committee on military justice for the International Society for Military Law and the Law of War.

While investigators have not yet spoken with Bergdahl, that is expected to happen “sometime in the near future,” says Wayne Hall, a spokesman for the Army.

Mr. Fidell is apparently taking the case pro bono.

While I personally believe that Bergdahl intended to desert his post, he is, like every other American, entitled to due process, and competent representation. One strongly suspects Mr. Fidell will give Bergdahl the same advice every competent attorney stresses to their client- don’t speak.

I’d like to see Bergdahl nuked for his crimes, but it’s more important to my mind that the military follow the rule of law that it exists to protect, preserve and defend.

Prosecutorial Reachback

Back in 2008, Congress passed a law that allows federal prosecutors to  pursue cases against discharged servicemen who are alleged to have committed crimes under the UCMJ, and yet were discharged before any proceedings.

There’s some sound reasoning behind this. Let’s say a notional service member committed an offense while deployed, say murder of a foreign national, and yet managed to escape detection until he was beyond the reaches of military law. Absent an ability to try him in federal court, it’s conceivable he could get away with murder.

But here we have a case where a Marine either negligently discharged his weapon, or purposefully shot another American.

When the gun went off inside the trailer at a Marine outpost in Iraq in 2008, the bullet pierced the left temple of a Navy hospital corpsman who was seated on his cot, rupturing his left eye and exiting though his right cheek. He survived, but was left partly blind.

Wilfredo Santiago

A Marine corporal who was present, Wilfredo Santiago, then 23, first told the authorities that he had heard a shot but not that it came from his own gun. About a week later, he admitted to a Navy investigator that while unloading his weapon, it accidentally discharged, copies of his statements show.

“I froze for a moment,” Corporal Santiago said, adding that he looked at the corpsman and “saw blood begin to form on the left side of his face.”

Corporal Santiago said that the corpsman, who acted as a medic for their team of Marines, which was stationed at Camp Echo and periodically rotated to the outpost, had been a close friend, and that he “would never do anything to intentionally hurt him.” He regretted not coming forward sooner with the truth, he said, adding, “I was afraid, and did not know what to do.”

The military took no action against Corporal Santiago, who was honorably discharged some months later and now lives with his wife and child in the Bronx. But last January, federal prosecutors in Manhattan had him indicted on charges of assault resulting in serious bodily injury and of lying to military investigators, all stemming from the Jan. 26, 2008, shooting of the corpsman, Michael Carpeso.

At the time of his discharge,  no punitive measures were taken under the UCMJ, neither judicial nor non-judicial.*

I tend to believe the prosecution’s assertion that an administrative error lead to Santiago’s discharge without any punitive actions.  In my experience, a negligent discharge of any type is grounds for some adverse action, and certainly one which sees a fellow servicemember**  severely wounded and disabled.  My own negligent discharge of a blank round on a training mission lead to a Summarized Article 15 (5 days extra duty, in my case). And a friend who negligently discharged 7 rounds from an M249 SAW badly wounded two other soldiers. He was sent before a General Court Martial, and sentenced to 18 months, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge.***

But here’s the thing. The government had its shot at Santiago. It is not his fault that the Marines dropped the ball on flagging his records (preventing him from being discharged while under investigation) or otherwise meting out some punishment to him. It isn’t like the Marines didn’t know the incident had taken place.  The 2008 act by Congress was clearly not meant as a way for the state to get a second bite at the apple.

Further, a delay of five years from the incident certainly seems extreme.  The government has vast resources with which to locate and interview witnesses for the prosecution, but the defense rarely has more than the barest assets with which to merely review the government’s case, let alone locate and depose witnesses for the defense. Especially, in this case, when the unit interpreter, an Iraqi national, will likely prove quite difficult to locate, let alone bring to trial as a witness.

I’m all for the vigorous prosecution of wrongdoing. That’s a keystone of a stable democratic society. But I’m even more for the concept of a fair trial, in which the vast powers of the state are constrained, and laws intended for one purpose are not imaginatively applied by zealous prosecutors for entirely different reasons (RICCO, anyone?).

What say you?

*Punishment under Article 15 of the UCMJ is handled by the unit commander, and is non-judicial in nature. That is, while it has adverse administrative effects and is often the basis for separation from the service, it does not count as a conviction, unlike a court martial.

**The Navy provides medical services to the Marines, including attaching Hospitalmen to the Fleet Marine Forces as combat corpsmen. They wear Marine uniforms, and are generally accepted by the Marines in a way no other sailors are.

***Upon review by the convening authority, his sentence was commuted to 6 months, reduction in grade to E-1, and forfeiture of pay and allowances. I forget the exact nature of his discharge, but I do recall it wasn’t a Dishonorable.

Hey, First Sergeant…

If you’re going to send an email to your troops about the Army social media policy, and how your troops don’t seem to understand it, you might want to make sure YOU have a clear understanding.

Earlier today, a disgruntled member of an Alabama Army National Guard unit forwarded the e-mail below from a first sergeant outlining the do’s and don’t of social media with the subject line, “Troops 1st Amendment Rights being denied.”

The email cautions troops to steer clear of posts about “gun control, the Democrats, the President, Congress, or personal opinions about STATE or FEDERAL GOVERNMENT matters.”

First, you’re the 1SG of an Alabama Army National Guard unit. Unless your unit has been Title 10 federalized, your troops don’t fall under UCMJ.

Second, while soldiers on social media DO represent the Army, the policy does not prohibit any of the topics you specified.

From the Army Social Media Handbook 2013:

However, Soldiers are subject to UCMJ even when off duty, so talking negatively about supervisors or releasing sensitive information is punishable under the UCMJ.

If these NG troops were under UCMJ, it would be inappropriate for them to publicly post that 1SG (Redacted) was a censorious twit who couldn’t read the policy without moving his lips.  But those troops have every right to comment on the topics that interest them. Provided they adhere to OPSEC, they still retain their 1st Amendment Rights.

Maybe Top should have spent more time listening to the training, and less time worrying about reflective belts.

On being property of the US Government

Over at Patterico’s, in a thread about the death penalty for child rapists, commenter “psyberian” claimed that service members are the government’s property. ABSOLUTELY NOT! They are members of the service, not property. They willingly agree to place themselves under the jurisdiction of the Uniform Code of Military Justice (UCMJ). It’s right there in the Oath of Enlistment. They surrender no constitutional rights. The UCMJ provides the same protections for a persons constitutional rights as any other court.
If you think this change of jurisdiction is odd, consider this. You willingly place yourself under a different jurisdiction every time you cross a state line.