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Monday, December 21, 2015

Serial 2:2, part 1

I think we are officially in the blogging black hole -- those couple of weeks between semesters when we all shift focus to the other parts of our lives.  For those of you hanging with us, here is the Serial recap.  Thursday’s episode of Serial has three parts.  The first few minutes bring the listener up to date on the recent news – Bergdahl is going to a general court-martial – and hinted that Senator McCain’s comments on the case may have had something to do with that.  That raises some interesting legal issues about unlawful command influence that I’ll discuss below. 

The second part tells the story of Bergdahl’s capture but from the point of the view of the local population and the Taliban.  That section is primarily story-telling and there isn't too much to discuss (although it is interesting that the Taliban thought Bergdahl was “brainless” – they may have been observing the symptoms of his mental illness). 

The third part covers the military’s search for Bergdahl and that section involves some controversy (but not all of it -- Sarah Koenig appears to be waiting until the next episode to tell us if anyone was killed looking for Bergdahl).  This section raises some interesting legal issues and some social psychology issues, which I will discuss tomorrow.

Looking first at the decision to refer Bergdahl’s case to a general court-martial, Koenig reminds the listener about some of Senator McCain’s recent comments about this case, where he said, “If it comes out that [Bergdahl| has no punishment, we’re going to have a hearing in the Senate Armed Services Committee.”  Those familiar with the confirmation process for general officers may hear the subtle message: “I am ready to hold up this particular convening authority’s next confirmation process and I may even hold up all Army general officer confirmations for a period of time.” 

One of the foundations of the American military justice system is the prohibition against unlawful command influence (UCI).  Prior to the implementation of Uniform Code of Military Justice (UCMJ) in 1951, commanders would often influence courts-martial by, say, issuing reprimands against panel members who voted for acquittals or light sentences.  (The movies Breaker Morant and Paths of Glory do a good job portraying this). 

Back then, these actions were lawful.  The military was pretty small and no one paid much attention – until huge numbers of Americans were drafted into service in World War II and 2,000,000 of them received a courts-martial.  When they got back, they complained loudly and Congress reacted by scrapping much of the old system.  Article 37 of the UCMJ now expressly prohibits unlawful command influence. 

If the right person says what Senator McCain said, that would raise two problems.  Those comments would likely be accusatory UCI, meaning that a commander or convening authority might recommend that the case go to trial when he or she would not have without that unlawful influence.  If you are the convening authority and concerned about your career, you will probably pay attention when your boss says, “There better be punishment in this case.”  Even if you think the case should be disposed of at a lower level, the risk-averse decision would be to send the case to a general court-martial.  This is the kind of UCI that Koenig was hinting at.

In relative terms, this kind of UCI is not that serious.  It is often identified before trial and a military judge can fix the problem by telling the military to reprocess the case within a new chain of command.  And, even if the case ends up at a general court-martial, the accused still has all of the protections offered in that forum and might get an acquittal or no punishment.

The more serious kind of UCI is adjudicative UCI.  With this type, the actual court-martial has been influenced:  the judge or defense counsel does something she shouldn’t have, a witness doesn’t up, or a panel member changes her vote.  For example, if you are a panel member and your commander says, “There better be punishment in this case or else,” you may be more likely to vote for guilt or for a big punishment.  That is a serious problem.  If a commander made the same comments that Senator McCain made and everyone know about them before trial, the military judge would craft remedies to prevent the comments from affecting the trial.  Often, the defense does not know about this kind of UCI until after the trial is over and the case is on appeal.  Appellate courts treat UCI issues like constitutional violations, with presumptions stacked against the government that have to be rebutted beyond a reasonable doubt.  

Article 37 has a limited scope, though.  For example, the first clause prohibits any convening authority from reprimanding the actors in the system. “Convening authority” includes the President, Secretary of Defense, and the service secretaries, but does not include most of the people in the military – and does not include members of Congress.  The second and more important clause prohibits anyone subject to the code from trying to coerce or unlawfully influence a court-martial.  The President and secretaries are not subject to the code.  You can’t court-martial them.  Members of Congress are not subject to court-martial, either.  While what Senator McCain said was irresponsible, it technically isn’t unlawful command influence. 

That doesn’t end the analysis, though.  If the President or a secretary or a powerful member of Congress says something like that, it is likely a due process violation.   The accused might not be able to get a fair trial.  What Article 37 really does is codify a particular type of due process violation.  In Bergdahl’s case, the military judge likely have to craft remedies (possibly ordering a new referral process or ordering expansive voir dire) to ensure that the case processing and the trial are fair. 

Still, I’m not convinced that the convening authority was influenced by Senator McCain’s comments.  In my experience, senior commanders were almost always thoughtful, wise, and ethical people.  They try to do the right thing.  (Mid-level and junior officers and noncommissioned officers sometimes get tripped up with UCI).  As the second half of this episode shows, Bergdahl’s actions caused serious consequences and I expect those consequences are what drove the convening authority’s decision to refer the case to a general court-martial.  I would not have made that decision, but I think it is within the bounds of reason -- and most likely made independently.  

Tomorrow I’ll will discuss the second half of the episode.

Posted by Eric Carpenter on December 21, 2015 at 08:36 AM | Permalink


These are fascinating addenda to the Serial podcasts, thank you for taking the time to write them.

Posted by: Michael | Dec 22, 2015 1:19:32 PM

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