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.