11 responses

  1. Tell that to the run-a-way train of FOX TV and they will seek your impeachment. The minimalist, base nature of our political discourse makes enlightened analysis, thoughtful, thorough judgment, the exception. Here is a question for you, why are all my old high school drop out buddies experts on Bengazi, Obama’s real birthplace and are registered GOP voters? why? Because the GOP now speaks to the low hanging fruit. As Joe Biden stated in 2008, this ain’t your father’s Republican Party anymore.

  2. I agree that we presently know nothing. I am not optimistic about what we know after a hearing and judgement.

    I propose that trial is not an exercise in finding truth. A trial is the state’s attempt to present admissible evidence for one theory at the truth followed by the defense’s attempt to refute that theory. A search for truth would not exclude credible evidence based on how it was obtained, would not have have a officer of the court dedicated to one outcome regardless of the truth, and would not entrust the final decision to a body selected for their unfamiliarity with the underlying issues.

    As you said, some things are more important that others. In this case Bowe Bergdhal’s right to due process is moire important than the truth.

    This particular case comes down to what one person did while alone several years ago. I suspect that when the, undoubtedly excellent, proceedings have concluded we will still have (perhaps reasonable) doubts about the truth.

  3. Marc,

    I am kinda bored. Impeach me, please! Let’s see if those folks could get a conviction.

    All the best.


  4. Judge:
    Several comments. First, you–and others–are, of course, correct when cautioning against a rush to judgement in this case. Although, one cannot help but wonder why the White House apparently failed to perform its own due diligence before the fact. Their failure to do so suggests, if you will pardon my cynicism, that they were more interested in getting the VA scandal off of the front pages (however, they may have ended up trading a headache for cancer if this turns out badly). Second, as to Mr. Cooper’s comments about those who watch Fox News and/or are Republicans, I would respectfully suggest neither political party has a monopoly on the debased nature of present day American public discourse. The only thing that is likely to change that discourse is a fundamental change in the culture and, for the life of me, I don’t how such a thing can be done. Finally, as to JDM’s comments, it may technically be correct that a trial is not the proverbial search for the truth. Yet, ultimately society profits from guaranteeing a defendant a fair trial irrespective of the result, including whether or not such a thing answers all outstanding questions about a person or an event.

  5. As a defendant I am preparing for an evidentiary hearing in an ineffective assistance of counsel claim and I confront the presumption of effectiveness placed on past counsel’s decisions, per Strickland v. Washington. I gotta tell you, attorneys should no longer be presumed to be above reproach. As a consumer for legal services in the criminal field for the past seven years, with big firms and one man shows, this is a mistake. Buyer beware!

  6. Judge, first of all, you are exactly right, Bergdahl is innocent until he is presumed guilty.

    Second, I would also like to add that the same presumption also should extend to the five released, at least, I can stretch the reasoning in Boumediene v. Bush and a few other cases that far, given that they were being held by the U.S. military on a very special U.S. land lease.

    With apologies for partisan headline, Professor Juan Cole at the U of MI does excellent analysis of what international laws mean in the context of the war in Afghanistan ending and us still holding people without trials in Guantanamo. http://www.juancole.com/2014/06/hysteria-withdrawal-symptoms.html. Scroll down to about paragraph 5:

    “The end of the Afghanistan War makes it impossible for the US to go on holding prisoners from that country’s Taliban regime of the 1990s, like the five former officials released on Sunday to Qatar. These individuals faced no trials either in the US or internationally. There were no grounds on which to continue to hold them. Letting them go 18 months early to retrieve the last US soldier held in enemy hands was not a difficult decision, given their imminent release in any case.

    The five former officials of the Islamic Emirate of Afghanistan were not terrorists. They were state actors. The US civil code defines terrorists as non-state actors. State actors can be war criminals, in which case the US could refer them through the UN Security Council to the International Criminal Court. But it makes nonsense of language and law to brand them ‘terrorists.’ After World War II, tens of thousands of German Nazis and Japanese militarists taken prisoner during the war were repatriated by the allies. Where they dragged their feet, using the POWs for slave labor, the Red Cross complained that they were violating their 1929 Red Cross obligations. The US released many persons initially held as Class A war criminals, such as Nobusuke Kishi (the “Showa-era Devil”), without trial. He later became prime minister of post-war Japan.

    Now we have the Geneva Conventions, which Obama argued apply to the prisoners at Guantanamo. The Geneva Conventions require that POWs be promptly released at the end of hostilities.”

    So in addition to “leave no man behind” and “presumption of innocence” principles we can also add “intelligence assets with a rapidly approaching expiration date” and “soon to be worthless as a bargaining chip because we would have to let them go anyway” as reasons for making the trade.

  7. Judge, agreed,

    Even an accused at court-martial is entitled to the presumption of innocence, the right to have the prosecution prove its case beyond reasonable doubt, and if exercises it, the right not to testify.

    If he were to be prosecuted he would not be the first under similar circumstances – think Vietnam (Garwood), Korea.

    His statements and actions at the time he apparently left the FOB will be evidence of his intent to desert and as an aggravator to avoid hazardous duty or shirk important service. Absence without leave (AWOL) is a lesser charge to desertion. Based on the information available, it is possible that the military will be barred from prosecuting him for AWOL because of the statute of limitations applicable to that charge; that is unless the unit Personnel officials did their job when he first went absent.

    If they decide to prosecute at general court-martial they must first hold a hearing under Article 32, to determine if there are reasonable grounds to proceed. This is not, as the media erroneously says, equivalent to a grand jury. The hearing is open, he is present, he has the right to counsel, and he has the right to call witnesses and examine witnesses presented by the prosecution.

    If the charge is referred to trial it will take place in a similar fashion to what you might see in the civilian federal district court in terms of process, with rules of evidence modeled on the Federal Rules of Evidence. The major difference will be that the judge, the members (including one third enlisted personnel if he chooses (what you call the jury), and military counsel (he has the right to hire a civilian counsel), and most witnesses will be in military uniform. The trial is open to the public.

    The Army will do what they believe to be the right thing regardless of the politics. What will become an interesting legal issue (of several) is whether the events surrounding his return can be admitted as aggravation during sentencing if convicted.

  8. Phil,

    Thank you for your informative and detailed response. When I was a law student, the National Moot Court topic that took our team to New York dealt with the My Lai killings. So, I learned a fair amount the UCMJ, and the potential tension between military tribunals and the federal courts. Fascinating!

    All the best.


  9. I feel a need to quibble a little. Knowing the truth is separate from determining criminal guilt/innocence. Trials aren’t the only source of facts. But it is certainly true that accusations that make it onto a TV news report aren’t necessarily any more trustworthy than neighborhood gossip.

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