Bergdahl’s Court-Martial
By: Lexi Herman
Recently the popular podcast Serial launched its second season telling the story of Private First Class Bowe Bergdahl. In 2009, Bergdahl was stationed at a small military camp called Mest-Malak outside of Yaya Kheyi, Afghanistan. The camp as described by Bergdahl in his recorded conversations with Mark Boal, replayed on Serial, depicts deplorable conditions and a failure in leadership leading to demoralization of the troops. To hear it described, it sounds a bit like hell on earth. A couple of tents surrounded by military vehicles and barbed wire in the middle of the desert with no bathrooms and plywood for a bed. This is where Bergdahl lived until one morning in June when he walked out of the camp and into the Afghani desert. Sarah Koenig reports Bergdahl’s story from the beginning – when he walked off the base all those years ago until he was charged with the most serious court-martial a soldier can be charged with, a General Court-Martial.
After hearing Bergdahl’s story on Serial, it occurred to me that although I have been in law school for almost 3 years now, I have little knowledge of the military justice system. While I do not intend to work within the military justice system, I thought it would be interesting to at least explore what being court-martialed means.
Basically, a court-martial is the military’s version of a criminal trial. Unlike the civilian criminal justice system where anyone who commits a crime can be brought up on charges, not everyone can be court-martialed. Court-martials are limited to those people who are military personnel, members of “quasi-military” organizations, military prisoners, prisoners of war, and, in very rare circumstances, civilians. Similarly, in the civilian justice system, a defendant is brought up on charges in the locality the crime occurred in, but to be subject to a court-martial, the incident in question does not have to occur on military land, yet may still be tried in the military justice system.
Once a member of the armed forces has been accused of an offense, their commander or military or civilian law enforcement officials will begin investigating the incident. After the investigation is complete, the investigators will determine what, if any charges they may bring. These investigating officers have the option to do nothing, bring administrative action, impose non-judicial punishment or “prefer” charges or allow a higher authority to prefer the charges.
Once the charges have become “preferred” the action taken becomes an official court-martial. Depending on the seriousness of the crime, the defendant will either be charged with a Summary Courts-Martial, a Special Courts-Martial or a General Courts-Martial.
A Summary Courts-Martial occurs when the accused has only minor charges brought against them. Most branches of the armed forces do not provide military attorneys for defendants charged with this type of court-martial. However, a defendant may hire a “civilian” attorney at their own expense. The maximum penalty is 30 days of confinement, forfeiting two-thirds pay for one month or having their pay reduced to the lowest pay grade.
The next level of courts-martial are known as Special Courts-Martial which occur when the accused is charged with offenses that are similar to what the civilian justice system classifies as a misdemeanor. At this level, the accused my chose to have their case heard by a military judge, a military judge plus a three person panel or only a three person panel. With this type of court-martial, a military attorney is appointed as the accused faces the possibility of year-long confinement, 3 months of hard labor, forfeiting two-thirds of their pay for up to a year, a reduction in their pay grade or a bad conduct discharge.
The most serious type of court-martial is the General Courts-Martial which is what Private First Class Bergdahl is charged with. Typically these court-martials are used for charges similar to a felony charge in a civilian court. Before a general court-martial is occurs, a pre-trial hearing known as an Article 32 hearing is held. However it is waivable. These hearings are similar to that of a grand jury where the charges are investigated to ensure that the evidence supports the charges. These hearings differ from a grand jury in one distinct manner – in these hearings, the accused is able to examine the evidence, cross-examine the witness and offer their own arguments. Once the hearing is finished, the investigating officer makes a recommendation as to whether a court-martial should be convened or if the charges should be dismissed.
If the authority decides to bring charges then the accused has the option of being tried by a military judge or a military judge and a five person panel. A distinct difference between these proceedings and a civilian court proceeding is that a unanimous verdict is not required unless it is a capital case.
Although the preliminary hearing officer did not advise this course of conduct, currently Bergdahl is facing a general court-martial for his 2009 disappearance and, if convicted, now faces life in prison.
To read more of Bowe Bergdahl’s story, I recommend reading Rolling Stone’s article “America’s Last Prisoner of War”.