Commanders Have Too Much Control Over Military Justice System

Posted June 24, 2015 at 8:11am

“The systemic flaws in the military justice system are in stark relief in the current criminal case of Sgt. Bowe Bergdahl,” writes Rachel VanLandingham , “a prisoner of war in Afghanistan for almost five years and released last year as part of a prisoner exchange involving Taliban detainees from Guantanamo Bay.”  

“Bergdahl’s case now proceeds to a pro forma preliminary hearing set for September, where a hearing officer will make non-binding recommendations. This advice will land on the desk of the responsible convening authority, who will make the ultimate call whether to send the case to court-martial. This commander — Gen.Mark A. Milley — can also take numerous actions regarding the case up to this point, including striking a deal with Sgt. Bergdahl to administratively separate with a general discharge, etc.”  

“Yet per the military justice system’s rules regarding conflicts of interest, Gen. Milley is unfit to make such decisions. Gen. Milley is no ordinary Army four-star — he was just nominated by President Obama to be the next Army chief of staff. He won’t assume that new role, however, until the Senate confirms him, for which no date has yet been set… And therein lies the rub: how can Gen. Milley impartially decide whether to court-martial Sgt. Bergdahl, or to accept Bergdahl’s potential offer of separation in lieu of trial, or plea deal or other disposition, if the very Senate — for whom the name ‘Bergdahl’ is a call to acrimonious arms — must vote on his assumption of the number one job in the Army?”  

“But when Sgt. Bergdahl asked for a new convening authority, Gen. Milley refused to recuse himself, despite the obvious conflict of interest… This is symptomatic of the military justice system’s over-reliance on commanders without commensurate real checks on their vast power. The system’s investiture of near plenary authority in commanders carries few constraints and lacks even professional responsibility rules and training that prosecutors are governed by in the civilian world.”