Serial Season 2

Thank you to Howard for giving me another guest blogger opportunity, this time to comment on the current season of Serial.  This season, Sarah Koenig and crew have turned their attention to the Bergdahl case.  For those hoping for another murder mystery, this season won’t be that.  Rather, it appears that Koenig’s goal is to explain why Bergdahl left his post and what the conditions of his captivity were like.  In the first season, the ultimate question was factual: did Adnan commit the murder?  In this season, I expect the ultimate question will be normative: should Bergdahl be prosecuted? 

This will be the first time we have heard Bergdahl's side of the story.  We don’t have much information about that because the government has issued a protective order on the investigative report that contains these details.  If the government had just released that report, as I discussed here, there probably wouldn’t be much story left for Serial to tell and I’m not sure the Serial team would have even picked up the case.  Because of that decision to close the report, the government now gets to deal with this publicity, and I am not sure that it will be good.

One reason why I am excited that Serial picked up the story is that it will focus some public attention on the military justice system.  I teach a class on military justice where we spend a lot of the semester being critical of certain aspects of the system.  My punch line for the course, though, is that the military justice system is probably the fairest system in the country.  Sure, there are some strange rules that might seem unfair, but the system does something great – it fully funds its public defenders, and every accused gets one. 

A typical county public defender might carry 200 cases at a time.  A military public defender generally has ten to twenty.  If I got in trouble, I would rather be in a system with a couple of odd rules but where my defense counsel will fully litigate the issues in my case, than in a system with standard rules but where my defense counsel doesn’t have the resources to investigate or litigate the government’s failure to follow those rules. 

Another reason that I am excited that Serial picked up the case is that, if the rest of the series is anything like the first episode, Koenig will be telling the story of our service members who are serving in austere and dangerous environments.  I don’t think this story is told enough. 

During my deployment, I spent most of my time at Bagram.  This was a sprawling compound and I was a full-on FOBBIT.  I lived in a tent, had internet access, and used a Porta Potty.  As Koenig explained in the first episode, the soldiers at these small observation posts (the type that Bergdahl walked away from) didn’t have those luxuries.  During holiday season, they weren’t stirring cookie dough.  I spent about a week total at different forward operating bases (the larger base that Bergdahl was trying to reach on his walk).  Even these aren’t very big.  Most of them are old, small adobe compounds without a lot of security and are isolated in the middle of hostile territory.  These are dangerous places.

Over the next few weeks, I hope to offer some insight on the military justice system.  I’ll try to spot those questions that listeners might have about the system (particularly listeners who are law professors) but which the show doesn’t answer.  And where I can, I hope to offer some insights based on my own experiences in the military.