“The case against Clevinger was open and shut. The only thing missing was something to charge him with.” Catch-22 by Joseph Heller.
While satirical, with this quote Heller brought attention to the concern that the military did not always dole out justice in righteous ways. And there was plenty of real life, legitimate outrage after World War II on this subject, which helped herald the creation of the Uniform Code of Military Justice.
But even today with the UCMJ, the tension between military necessity versus a fair trial creates debate. Military courts are not a separate body in the way an Article III court or state court is. While they have a tremendous amount of independence and power, a military court is still an entity inside the military. The commander who convenes the court, as well as military judges, military prosecutors, military defense counsel and military juries still all work for the same person (albeit far up the command chain).
Experienced military counsel will tell you that this generally works, although recently some of the safety measures originally placed in the UCMJ have been removed for political reasons. And that is bad. But, the system is tested sometimes to the breaking point when dealing with tough cases. The Bowe Bergdahl case is a great current example. And good for his defense attorneys for pressing the issue.
General Robert Abrams was the commander who decided to send Bergdahl to a court-martial, despite the fact that Bergdahl spent five years as a POW to the Taliban under incredibly severe conditions and despite the fact that his Article 32 hearing officer recommended a lesser form of punishment. That decision was for General Abrams to make – or was it? Before General Abrams made the decision to send the case to a court, Senator John McCain very publicly stated that he would hold congressional hearings if the case did not go to a court-martial. So, General Abrams was faced with at least the appearance of a political problem – if he chose not to send the case to a court then he would personally face a hearing before Congress where he would be cross-examined on a national stage, complete with congressional grandstanding. Oh, and not to mention McCain sits on the Senate Armed Services Committee and has as much control as any regarding which generals get confirmed by the Senate for promotions and job assignments. If General Abrams failed to send this case to a court – even if he truly in his heart knew that it was an unfair decision – what would happen to his career?
Perhaps, as he testified, General Abrams would have made the same decision without McCain’s threats. Or perhaps not. It sure seems like a politician made the decision for General Abrams. That perception alone points to a major flaw in the system, and is a reason to commend defense counsel who are brave enough to stand up to the powers that be.