Berghdal Files Motion to Disqualify the Convening Authority

If you're going to shoot at the king, you'd better make sure you kill him. This week, attorneys for Sgt Bowe Berghdal will argue a motion to disqualify General Robert Abrams as the General Court-Martial Convening Authority. If they're successful, the case will be referred to trial by a new general equally as hostile to the defense. If they lose the motion, they're stuck with General Abrams.

The defense is arguing - among other things - that General Abrams is conflicted from the case because he was involved as an advisor to the Secretary of Defense during discussions about securing Berghdal's release from the Taliban. It's actually a good argument. General Abrams is potentially a witness in the case. Shame on the Army for thinking General Abrams could act as the Convening Authority.

Recall for a moment, that the original Convening Authority was General Milley - who later became the Army Chief of Staff. He was also accused of Unlawful Command Influence by the defense. This was originally a Fort Sam Houston case. The reward for removing General Milley from the case was a transfer of the trial location and Convening Authority to Fort Bragg.

One of the other arguments has to do with General Abrams burning some letters from members of the public. It just doesn't make any sense why General Abrams would do that. If he did it out of contempt for the case it reflects poorly on his judgment.

But there are some lessons to be learned from this case:

Lesson #1: If you're going to shoot at the king, you better make sure you kill him. It's hard to disqualify a Convening Authority from a case. They may actually have a good argument here.

Lesson #2: In the defense business you have to be careful what you ask for. In this case, they got Fort Bragg. Who knows what other letter burning general is in the queue as the next Convening Authority.

My historical experience with Fort Bragg has left me largely unimpressed with their military justice record for fairness. They have a reputation for harsh judgments at Bragg. Although, I personally have had good success at Fort Bragg. My success is partly attributable to the everyday Soldier sitting as a juror.

In the annals of military history, the Berghdal case is fairly uninteresting at its core. A Soldier with a schizotypal personality disorder walked off an outpost in a combat theater. Soldiers have left their posts before.

In preparation for a radio interview earlier this year, I looked at every published military appeals case since the Korean War. I concluded a 24-month sentence would be right down the middle in this case if he was found guilty. In fact, in 2015 a Marine named Cpl Hassoun left his post. He showed up blindfolded on Islamic militant websites. Then he spent some time confined in Lebanon. Long story short, he got 2 years confinement and a discharge. According to my research, the judge's sentence was completely fair.

Early in my career, I got to meet Charlie Jenkins through a friend that represented him. Charlie famously walked away from his outpost in the South Korean DMZ in 1965 to avoid going to Vietnam. As he told 60 Minutes - he made a lot of mistakes in his life and that was a big one.

Charlie was going to walk across Korea, get captured by the Russians, and be sent home in a Cold War prisoner exchange. What really happened is that he got caught by the North Koreans almost immediately after crossing the DMZ.

Charlie spent some 40 years detained. The North Koreans kidnapped a Japanese woman from the mainland and forced her into a marriage with Charlie. They're still married as far as I know. They have children. And in 2002, the Japanese government negotiated their release from North Korea.

That didn't stop the Army from holding a court-martial for the then 64-year-old Sgt Charlie Jenkins. He got 30 days confinement and a discharge - which seems like a ridiculous sentence in light of his 40 years of North Korean torture and captivity.

The Berghdal case is interesting mostly in that some people think a steep price was paid for his release. He was traded for 5 Taliban enemy combatants.

I've always said that I would not criticize the US Administration for bringing home an American. But, those within the ranks have been awfully critical of that decision. That outright hostility towards the price paid for his release is a problem if those Soldiers sit on his jury or decide his potential sentence.

The Investigating Officer at the Article 32 Investigation recommended no confinement. I thought it was a legally sound and fair recommendation. Unfortunately, Sgt Berghdal did a podcast. His defense team is well-respected by all accounts. But, that was a bold move allowing a client with a schizotypal personality disorder to go public. It apparently didn't play well in Army circles.

That brings me to lesson number three:
1: If you're going to shoot at the king, you better make sure you kill him.

2: Be careful what you ask for.

3: Never do or say anything that you can't talk your way out of.

Early in my career, I was involved in the Marine Corps Haditha case. Some of the best lawyers in the country were involved. We all tried to stay on the same page. Sgt Wuterich was well-prepped for a 60 Minutes interview with Scott Pelley (who had also interviewed Charlie Jenkins). But, Sgt Wuterich made a mistake and told 60 Minutes that he told his men to " shoot first" and "ask questions later." He also said he felt no emotion. Those quotes were obviously unpopular with the other Marines facing court-martials.

And that brings us to our last lesson. A defense lawyer's relationship with the media is symbiotic. We don't seek media attention for the sake of media attention. There must be something strategic to gain. The Berghdal team was trying to humanize him with the podcast. Smart play. But, Mark Boal did the podcast. He's an Oscar-winning journalist with credits that include The Hurt Locker. Pretty impressive.

Years ago, I was involved in the Stryker 5 case out of Fort Lewis. A number of Soldiers were accused of killing for sport. I defended one Soldier. Mark Boal famously wrote a Rolling Stone piece dubbing them "The Kill Team." I didn't solicit the story. I wasn't really interviewed for it either, other than a short phone call with either him or his assistant (I forget who). Needless to say, that's not the headline I would have gone after.

As much as I respect his work, I don't think I would have tried to humanize Berghdal with a Mark Boal podcast. It's fairly predictable that his work would not be well-received in leadership circles. But it was a defense strategy call. And they're fighting hard for Bowe. For that I applaud them.

Regardless of the outcome, this case is going to end with lots of lessons to be learned for everybody in this business. I'll go on record. I don't think he should be confined if found guilty. At the same time, historically anything around 24 months is fair.
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