President Trump and Senate Republicans are working hard to reduce the irresponsible leftism and general inanity of the federal judiciary. But what can be done about the irresponsible leftism and general inanity of the military justice system?
That leftism and inanity became apparent to me more than a decade ago when the JAGs, aided by Lindsey Graham (himself a military lawyer), applied their version of military justice to hamper our efforts to interrogate and combat terrorists. I wrote several posts about the matter including this one.
There’s a saying that “military justice is to justice and military music is to music.” It seemed to me that a generation of baby boomer military lawyers was seeking to improve this image in the eyes of America’s elites by granting rights to terrorists and constraining U.S. military operations against them.
The hubris of this enterprise was captured in the ludicrous claim of military lawyer Charles Swift (who represented Osama bin Laden’s driver) that applying our system of military justice to people like his client “makes us undefeatable ultimately.” Sorry, Charlie. What comes the closest to making us “undefeatable ultimately” is relentless warfare against our enemies.
Swift’s hubris paled in comparison to that of General Mark Martins, a highly decorated and celebrated Brigadier General in the United States Army JAG Corps. He declared that “law embodies and summarizes human experience about right action in a particular context.”
As I wrote:
Many experienced lawyers across a wide range of practice areas may find this statement naïve. They may also wonder about the quality of a summary of human experience under which suspected terrorists can be killed without legal process by drone strikes but, if captured in the hope that they will provide valuable intelligence, cannot be slapped in the face.
Gen. Martins and his “lawfare” movement hurt our efforts to combat terrorism. Harvard professor Jack Goldsmith — admirer of Martins, defender of lawfare, and founder of a blog with that name — concluded that “lawfare” constraints have impeded our military operations and increased the number of U.S. casualties. They even enabled Mullah Omar, the leader of the Taliban, to escape after a lawyer dissuaded the military from striking a building because civilians were probably present.
Goldsmith explained: “[S]urrounded by law and under the gaze of many potential retroactive critics, it is entirely rational for soldiers up and down the chain of command to hesitate before acting.” Such hesitation is sometimes incompatible with waging effective warfare.
Contemporary military justice proved ill-suited to fighting terrorists. But one might still hope that it’s adequate to meting out justice to U.S. deserters in the fight against terrorists.
Today’s decision that confessed deserter Bowe Bergdahl will serve no jail time shows otherwise. Bergdahl didn’t just desert, he caused serious damage to America. The damage included missions to rescue him that resulted in grave wounds to several of our troops, plus a one-sided prisoner exchange that resulted in the release of five major terrorists.
Today, I heard one former Marine tell Fox News that, even counting the years Bergdahl spent in captivity, he will end up serving less time than soldiers caught selling drugs at their base. With results like that, comparing military justice to military music grossly insults the latter.
Any fair discussion of the Bergdahl case requires an acknowledgement of President Trump’s reckless behavior. I wrote about it here.
Candidate Trump called Bergdahl a “dirty rotten traitor.” That shouldn’t matter because Trump was a private citizen. President Trump irresponsibly stated: “I think people have heard my comments in the past.”
Does this comment justify a decision that allows Bergdahl to avoid jail time for his desertion? Maybe in the inane world of military justice. Not in a sane world.
Actually, we don’t know whether the military judge who decided Bergdahl walk based his decision in whole or in part on Trump’s statement. The judge did not provide his reasoning. This fact makes it even more difficult to take the decision, and the entire system, seriously.
Trump responded to the decision by calling it a “disgrace.” That, it is.
However, Bergdahl’s defense will use the statement to try and overturn Bergdahl’s dishonorable discharge. Rachel VanLandingham, a law professor and retired Air Force lawyer says Trump has “exponentially increased Bergdahl’s chances of getting this whole case tossed on appeal.”
I hope this doesn’t happen. If it does, though — if Bowe Bergdahl is honorably discharged — military justice will be even more fully exposed as the disgrace Trump says it is.
UPDATE: Ralph Peters treats today’s decision with the contempt it deserves.