CAAF Made UCI Sergeant Bergdahl's Burden to Overcome, not the Government's

Last year, Sergeant Bergdahl’s appellate counsel asked me to assist two experts in civil-military relations in submitting an amici curiae brief to the Court of Appeals for the Armed Forces. Unfortunately, CAAF rejected the submission from Professors Richard H. Kohn, and Jonathan Lurie, and did not consider these two experts’ input before finding President Trump’s and Senator McCain’s unlawful command influence (UCI) did not place an intolerable strain on the military justice system.

The reason I disagreed with CAAF’s decision to reject the submission, other than my role in writing it, was the brief provided a broader context the Court should have considered when finding President Trump’s UCI placed an intolerable strain on the military justice system. The amici explained protections from UCI were codified in the UCMJ after WWII, as Congress wanted to protect the citizen Soldier's individual rights from an overzealous command.

Sergeant Bergdahl’s case provided a unique application of the UCI doctrine, as civilian leadership engaged in an unrepentant attack on the impartiality of the military justice system. The amici asked the Court to consider not only President Trump’s inappropriate actions in Sergeant Bergdahl’s case, but to consider the broader context of President Trump’s attacks on traditional civil-military relations. In particular, President Trump put pressure on military leaders who did not bend to his will—as his behavior in Chief Gallagher’s case demonstrated.

Alas, the Court found the broader context irrelevant, then found the government satisfied its burden beyond a reasonable doubt. That is, the majority found President Trump’s and Senator McCain’s UCI did not place an intolerable strain on the military justice system. The Court did not consider it relevant for their analysis the other concrete examples of President Trump undermining the traditional functions of the military justice system, or when he made commanders fear for their career prospects when they disagree with him.

A few days ago, Sergeant Bergdahl asked CAAF to reconsider their recent decision. At CAAF, appellants can ask the Court to reconsider within 10 days of a decision, in order to point out misstatements of law or fact, and to draw the Court’s attention to arguments they may have overlooked. Reconsideration is rarely granted, because it requires a judge to admit a mistake in a case they have already deliberated on extensively.

Nonetheless, this reconsideration motion is persuasive—even though it is unlikely to succeed. Sergeant Bergdahl points out that the majority opinion essentially used an actual UCI test, not an apparent UCI one—since they looked at the effect the civilian leadership’s comments had on the referral decision and sentence. The motion also notes that CAAF weighted factors against Sergeant Bergdahl that they failed to weigh against recent UCI litigants—such the gravity of the offenses. See United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017), where the Court overturned a rape conviction for UCI, where rape has the same maximum punishment Sergeant Bergdahl faced for his convictions.

The most persuasive point to my mind, though, argues CAAF stepped in to find facts that were not in evidence. The motion provides many examples. But the two most interesting were, first, CAAF footnoted the DOD policy that provides POWs are only to be prosecuted for crimes committed in captivity. The Court found the parameters of the policy are less than clear, and Sergeant Bergdahl did not provide an example of the policy’s application. This is classic burden shifting by the Court. It was the government's duty to provide those examples, yet the government failed to come up with even one.

The second example is Sergeant Bergdahl’s DD 214 from the Coast Guard. That document contained a reenlistment code that required he receive a waiver before reentering military service. That code should have prompted any recruiter or human resource officer to research into the Coast Guard’s dismissal of Sergeant Bergdahl for untreated mental health issues. Yet CAAF found the Army was not aware of the Coast Guard’s admonition against admitting Sergeant Bergdahl, even though the government provided zero evidence to back up that claim. In fact, the DD 214 is persuasive evidence the government was aware, or at least reasonably should have been aware. Again, the Court finds facts in favor of the government despite the record, and despite the government's burden in UCI cases.

Finally, Sergeant Bergdahl’s case is one that I was not that interested in for many years, as the political circus around it caused me to ignore it and focus on my own cases. It was not until I was asked to contribute on the periphery of this case that I became offended by the unprecedented nature of the government's actions, and the overwhelming apparent UCI—UCI the Court essentially found existed. It appears to me that the Court could not take the logical next step after that finding, apply a broader context of all of President Trump’s behavior to bend the military to his personal will, and conclude that a disinterested observer could not conclude, beyond a reasonable doubt, that the impartiality of the military justice system was untainted in Sergeant Bergdahl's court-martial.