Ignorant Outrage

        The results of the Bowe Bergdahl trial have ignited a storm of ignorant outrage. I say "ignorant" because the general tone of said protests is in two areas. The First: many are apparently angry that their government won't execute Bergdahl. The Second:  irate assertions that  "back in the day...etc" with a general allegation that there has been a recent (a sidelong barrage at the Obama administration in some cases) change in how desertion has been treated historically in this case.

        Some actually seek to somehow blame President Obama for all of this as if he had influence over military judges who don't work for him. Many angry responses on Facebook, re: my  attempts to shed light on the reasons for some portions of the Bergdahl decision, immediately elicited words like "traitor" (as in Bergdahl was one,  liberal (as in I must be one for pointing out the related facts) , insane, softy (me)...etc.  Let's deal with facts first.

        The US Constitution defines two things clearly and has for over 200 years. The first is "Treason," the second is "War."  John Marshall's strict constructionist  decision in the Aaron Burr case during the Jefferson administration stands today. Bergdahl is not, and cannot be held, guilty of treason per Article 3, section 3. Period.

        Execution for desertion cannot be awarded by a military court unless it is in time of war, per the Uniform Code of Military Justice. (Section 885, art. 85 "desertion")This specifically means that  the President must have asked for, and Congress approved, a formal declaration of war for this (death penalty) to apply.

         The last 76 years have seen numerous military overseas "adventures" but there has been no declaration of war since 1941. Korea ,Viet Nam and The Middle East were and are obviously military conflicts, but not "war" per our governing document. A lot of the unwashed and generally moronic angst revolves around this definition of war. 

      It is apparently useless pointing out that if Bush 43 had wanted to have a declaration of "war" in Iraq, he could have asked Congress for one. He didn't. Lyndon Johnson settled for a fallacious Gulf of Tonkin "resolution", based on an incident which never happened per Admiral Jim Stockdale, the longest POW captive of the "war," after Eisenhower and JFK  simply used "military advisors" and the CIA. Harry Truman was apparently OK with a "United Nations Police Action." in Korea.  See the word "war" there anywhere? Me neither, and the law doesn't either! Yes, many will still scream "war" when referring to these military actions, but there's a reason for laws, and these zealots are a significant portion of these reasons.

        Finally, the Bergdahl decision isn't a "softening" of policy. Of an estimated almost 50,000 deserters in WW II (an actual "war") only one man, Eddie Slovik" was executed. He was, in fact the only US serviceman executed for the crime of desertion since the US Civil War, a span of over 150 years, and he actually deserted five times, before being held terminally accountable. Of more than 4,000 Viet Nam era deserters, most were pardoned, none did hard time.

        More recently, and more significantly, Army Sgt. Charles Jenkins, who abandoned  his post  in 1965,  surrendered to North Korean forces, living there for 19 years, until 2004. Jenkins suffered no physical torture at the hands of his "hosts", no penal imprisonment; in fact at one time he taught English in a North Korean university! His penalty? 30 days confinement, with, amazingly, 6 days off for "good behavior",  reduction to Private and the same Dishonorable Discharge awarded to Bowe Bergdahl. It is noteworthy that, the President at the time of Jenkins' repatriation and trial , George W. Bush, remained mute with regard to his personal opinion on the issue and the trial, considering it a military matter and that his opinion, if voiced might be prejudicial to the process. This was an appropriate, and uncharacteristically wise, Bush decision.

        Interestingly enough, the Uniform Code of Military Justice does address the issue of influencing, or attempting to influence,  a military court in Section 837, Article 37. This is what it says:  "No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts."

        Considering the blatantly prejudicial comments made by the Commander in Chief of all US personnel subject to the UCMJ, it's probably a good thing that he is above the law, or at least considers himself to be. Had this been a civil trial and Trump a Governor or Mayor, it would most likely have been grounds for either a mistrial, change of venue, or jury dismissal.

        This is in no way an apologia for Bowe Bergdahl's actions which I would condemn. I would have had no difficulty with a prison sentence in his case, but regardless of what one thinks (or "tweets") about Bergdahl, his punishment is consistent with over 70 years of history. In fact it has been perhaps more harsh for Bergdahl, held captive and tortured for five years, than for Jenkins, the Korean  deserter who suffered neither, colluded with North Korea, but was more leniently judged.