Trial by Congress

For some reason, Congress feels less compunction about getting into the details of pending courts-martial than it does about doing so for cases in the civilian federal courts. A current illustration is yesterday's hearing before the House Committee on Foreign Affairs. According to this report in the Daily Beast, Spec. (ret) Cody Full, a former roommate, testified that "Sgt. Bowe R. Bergdahl’s actions in Afghanistan constituted the 'ultimate betrayal'—and he deserves to be charged with desertion." Spec. Full rattled off offenses for which Sgt. Bergdahl should be investigated, adding that "[k]nowing that someone you needed to trust deserted you in war and did so on his own free will is the ultimate betrayal."

Witnesses arranged by the Republican-led House panel testified that Bergdahl’s decision to leave his base in Afghanistan endangered lives, and possibly cost them. Mike Waltz, a former Army special forces commander in Afghanistan, testified that the search for Bergdahl allowed the Taliban to lure soldiers into traps.

“My men were lured into ambushes, including an Afghan home rigged with explosives, a car bomb that was primed to explode, and other types of deadly traps,” Waltz said. “All of my men, me included, were absolutely furious and resentful, frankly, that a fellow American soldier had put us into this position.”

Given that the disposition of Sgt. Bergdahl case remains to be decided (and indeed, is still under active investigation), hearings such as this seem most ill-advised. There's no specific reference to unlawful congressional influence in the broad statutory prohibition on unlawful command influence, and after all, given the separation of powers, what court can or should tell Congress what hearings it can conduct? But it can be equally unfair. It can also backfire: if Sgt. Bergdahl is charged, hearings such as this may provide fodder for motion practice in an attempt to demonstrate that congressional attention to his case deprived him of the benefit of untrammeled, independent exercise of discretion in the disposition process or otherwise denied him a fair trial. At least the House of Representatives doesn't have the power to influence decision makers by threatening to (or actually) blocking promotions.

“It may take months until we know what transpired,” said Rep. Ted Deutch (D-FL). “I’m a bit perplexed when some members of Congress have already decided the facts of this case. . . . I would ask what kind of military court of justice we have where members of Congress play judge and jury.”

It's one thing for those responsible for the administration of military justice to have a weather eye out for congressional reaction to how discretion is exercised, as seems to have been the case in the trial of Brig. Gen. Jeffrey A. Sinclair earlier this year, but quite another for Congress proactively to try a case before it even gets into the military justice system.