Sunday, June 15, 2014

Disposition standards and the case of Sergeant Bergdahl

Sgt. Bowe R. Bergdahl
A variety of events, not least of them the accelerating conflict in Iraq, have conspired to force the case of Sergeant Bowe R. Bergdahl off the front page and evening news for the moment. Together with widespread dismay about efforts by some to make political hay out of the case, and the fact that he is receiving medical and other attention in Texas while the Army supplements its earlier (still-classified) investigation, the result is that we are currently enjoying a lull in the nationwide speculation about possible military justice proceedings against him. That being the case, it may be worth taking a deep breath and brushing up on some basics.

Under current law, the ultimate decision on the disposition of any charges against Sgt. Bergdahl will be made by a non-lawyer military commander (a matter that has been the subject of sustained attention in the context of sexual offenses but much less so with respect to other kinds of offenses by military personnel). What standards will that officer apply? For this, we need to refer to the Discussion under Rule for Courts-Martial 306(b), which is found in the Manual for Courts-Martial (2012 ed.). It provides this guidance:
The disposition decision is one of the most important and difficult decisions facing a commander. Many factors must be taken into consideration and balanced, including, to the extent practicable, the nature of the offenses, any mitigating or extenuating circum-stances, the character and military service of the accused, the views of the victim as to disposition, any recommendations made by subordinate commanders, the interest of justice, military exigencies, and the effect of the decision on the accused and the command. The goal should be a disposition that is warranted, appropriate, and fair.
In deciding how an offense should be disposed of, factors the commander should consider, to the extent they are known, include:
(A) the nature of and circumstances surrounding the offense and the extent of the harm caused by the offense, including the offense’s effect on morale, health, safety, welfare, and discipline;
(B) when applicable, the views of the victim as to disposition;
(C) existence of jurisdiction over the accused and the offense;
(D) availability and admissibility of evidence;
(E) the willingness of the victim or others to testify;
(F) cooperation of the accused in the apprehension or conviction of others;
(G) possible improper motives or biases of the person(s) making the allegation(s);
(H) availability and likelihood of prosecution of the same or similar and related charges against the accused by another jurisdiction;
(I) appropriateness of the authorized punishment to the particular accused or offense;
(J) the character and military service of the accused [Editor's note: in a provision not limited to sexual offenses, Congress has directed deletion of this factor no later than 180 days after approval of the National Defense Authorization Act for Fiscal Year 2014 (sec. 1708)]; and
(K) other likely issues.
Several important points should be noted. Discussion portions of the Manual do not enjoy the force of law, even though in this instance the opening paragraph employs the mandatory term "must." What is more, the drafters understood there would be a balancing process rather than a checklist. The disposition factors are also anything but precise; they leave enormous room for the exercise of discretion, as witness the utterly open-ended subparagraph (K) ("other likely issues"). On top of it all, the opening paragraph makes it clear that even this list of factors is not exhaustive. Whoever makes the disposition decision in Sgt. Bergdahl's case will thus have largely untrammeled discretion.

Whatever may be the proper substantive considerations, what level of proof should be required when exercising disposition authority? Professors Rachel VanLandingham and Geoffrey Corn commented on this in a joint submission to the Response Systems Panel on Adult Sexual Assault Crimes. They write:
VII. The Vital Need for Ethical Prosecutorial Standards
Even with commanders and their military lawyers possessing equal roles in the decision to prosecute [Editor's note: this is the gist of their proposal for structural change], the pre-trial deliberative process will remain fraught with the potential for injustice because of the lack of guiding ethical standards and training regarding the appropriate versus inappropriate use of prosecutorial and administrative disciplinary measures. There is currently a paucity of formal dispositional touchstones available to commanders as they exercise their prosecutorial and disciplinary discretion. Even if lawyers are incorporated into the prosecutorial decision-making process, the current lack of robust principles to guide such decisions will continue to hamper their effectiveness. Current statutes and regulations provide commanders and their lawyers with vague and limited information regarding the implementation of military justice; most commanders as prosecutors receive little formal instruction regarding when to prosecute and when to use alternative administrative measures. Furthermore, the formal training they may receive is inadequate because it is based on the sparse guidance found in the UCMJ, the Rules for Courts-Martial (RCM), and implementing service regulations.
The RCM themselves formally require commanders to dispose of offenses “in a timely manner and at the lowest appropriate level of disposition,” fail to elaborate what is “appropriate,” and make little mention of fairness, justice, or goals of the criminal system. Currently buried in the Rules’ non-binding Discussion section are eleven unelaborated factors for commanders to consider in dispositional decisions. These factors lack explanation, comment, context and clarity. While these factors are appropriately based on the American Bar Association’s (ABA’s) Criminal Justice Standards: Prosecution Function, they are not inclusive and fail to include contextual commentary. In fact, the Department of Defense drafters of this section cherry-picked from the ABA's Standards, and chose not to incorporate all of the latter. For example, the drafters excluded the ABA’s recommendation that the prosecutor should consider their own reasonable doubt as to the accused’s guilt. The drafters chose to explain this omission, stating that a commander’s reasonable doubt as to the accused's guilt should not be a factor in the commander's arsenal of dispositional considerations because it is "inconsistent with the convening authority's judicial function." This, despite the commander exercising prosecutorial, and not judicial, authority during the critical pre-decisional, dispositional phase of military justice. Such illogical arbitrariness demands revision and refinement. Furthermore, while the military appellate courts weigh commanders’ referral decisions (decision to prosecute) for constitutional concerns like vindictiveness and use of impermissible classifications such as race or gender, neither the Manual for Courts-Martial nor the service regulations translate these concerns into ethical standards or dispositional factors for commanders or their advising lawyers to consider.
In reality, commanders are essentially left to their own good judgment to decide when to prosecute, as long as the low standard of probable cause is met. Contrast this with the Department of Justice’s (DOJ) formal "principles of federal prosecution” for U.S Attorneys, found in the United States Attorneys’ Manual 9-27.000 (DOJ Manual). These comprehensive DOJ principles provide detailed instruction to prosecutors working throughout the country; they aim to provide fairness and consistency in prosecution, yet strive to maintain necessary flexibility and room for maneuver as the nature of prosecution demands. An example of the explanatory value they add to stated dispositional considerations is found in the DOJ Manual’s section regarding the “nature and seriousness of the offense” as an appropriate dispositional factor. Instead of merely listing it as a factor a prosecutor must consider, the DOJ Manual’s comment section details numerous ways in which such community impact can be evaluated. This level of detailed explanation is repeated throughout this official guidance, and serves as a model for the development and incorporation of similar principles in the military justice system. [Footnotes omitted.]
Readers will be better able to form their own opinions as to what disciplinary action, if any, Sgt. Bergdahl should face once more information becomes available. It may be that when more is known the decision will not be a hard one even if, as the political discourse to date suggests, there will be noisy disagreement in Congress and elsewhere. But the progress of the case in any event ought to be followed closely from the standpoint of assessing whether the current Manual guidance is as helpful as it could be. It may also shed light on whether, as Professors VanLandingham and Corn suggest, more or different flesh should be put on the bones of the R.C.M. 306(b) Discussion, particularly with respect to whether the official making the decision -- be that person a commander or, if the UCMJ is further amended as many legislators believe it should be, an independent Chief Trial Counsel -- must be personally convinced of the accused's guilt beyond a reasonable doubt as opposed to merely finding probable cause or believing that an unbiased trier of fact would probably convict. (Perhaps the Defense Department is already considering their suggestion to substitute “the person's history with respect to criminal activity” for subparagraph (K) of the Discussion. Prudence would dictate consulting the armed services committees before making that change given Congress's recent action.)

Postscript: DoD did delete subparagraph (K), as part of the 2014 Manual changes the President signed on June 13, which only became available on June 18, upon publication in the Federal Register. See related post here.)


  1. An interesting and useful beginning.

    If my information is correct, Bergdahl will not be prosecuted for absence without leave (AWOL).

    AWOL is a lesser charge than desertion, but unlike desertion only requires proof the person left his unit without authority. The statute of limitations for this offense is five years from the point he went absent.

    When a person goes AWOL and has been gone at least 30 days an administrative determination is made that they are a deserter. A federal arrest warrant is issued, and most importantly a charge or desertion is preferred and "received" by the summary court-martial convening authority. The preferral and receipt is important because it then tolls the statute of limitations. It's my understanding a preferral and receipt wasn't done for Bergdahl.

    For desertion to be proven the prosecution must prove beyond reasonable doubt an intent to desert and remain away permanently. This can be done through statements made at the time he left, circumstantial evidence, and a corroborated confession upon his return.

    As Gene says, we shall see . . .

  2. This is very useful for journalists and many others to understand in a nutshell what the system is.

  3. As purely military offenses, AWOL and desertion fall outside the purview of the military's independent law enforcement investigations. When they do occur, such as in murder and sexual assault cases, these law enforcement investigations serve as a buffer: buying time between incident and disposition by a commander.

    As a result, Bergdahl's lowest level commander could theoretically make RCM 306 disposition today. This commander could decide to recommend criminal charges, offer non-judicial punishment, or take no action. The only reason this commander would not be able to act is if a higher-level commander pulls this initial disposition authority up to their higher level. There are no reports that this has occurred.

    The fact that the Army has appointed a two-star general to conduct an administrative investigation into the Bergdahl situation may be appropriate but is irrelevant to determinations of disposition authority.

    Will we see a disposition decision today or tomorrow by a low-level commander? Of course not. Everything about the return is being centrally managed by senior military officials. Central management makes sense in such a high-profile case, but also recalls the delicate need for balancing that the Marine Corps faced a few years ago in another closely watched case, United States v. Chessani. The lesson from Chessani is that the military needs to be extra careful when centrally managing big cases because of how easily doing so can compromise or taint disposition authority.

  4. From Stars & Stripes:

    "“As for the circumstances of his capture … we’ll learn the facts,” Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey said in a statement on his Facebook page. “Our Army’s leaders will not look away from misconduct if it occurred.”"

    "In an interview with The Associated Press, Dempsey suggested that the military is sensitive to accusations that it lets people off the hook. He noted that U.S. military leaders “have been accused of looking away from misconduct,” and said “it’s premature” to assume Bergdahl would not face discipline."

    This all sounds sensible, but seems to foreshadow pre-trial motions. Was the top general sending a dog whistle to lower commanders that charges should be preferred against Bergdahl? Regarding the "premature" comment, does this mean lower level commanders were ordered to wait for certain things to occur before taking their judicial action?

  5. Note UCMJ Article 43(d): "Periods in which the accused was absent from territory in which the United States has the authority to apprehend him, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article."


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