Editorial: Fissell on Bergdahl

Sometimes cases can be decided like math problems—a legal rule, when applied to the facts, makes clear the outcome. At other times, it seems as if the law provides almost no guidance to the judge, giving only a vague standard that different people might apply differently. The difference between the two is the relative “determinacy” of the relevant law. Cases of the first type are undoubtedly easier for outsiders to evaluate as “correct” or not. Cases of the second type are more difficult to evaluate in that mathematic manner, but their reduced determinacy in some sense invites a higher-order evaluation that would not be permissible in a case where a rule is strongly determinate. Put another way, when rules do not strongly constrain judicial decision making, we are freer to consider the substantive justice of the decision or, say, its implication for future cases and for the court as an institution. Apparent unlawful command influence is a doctrine in this second category. The test is one of the vaguer legal tests one might ever find: whether the official conduct “place[d] an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would…harbor a significant doubt about the fairness of the proceeding.” 76 M.J. at 249. Thus, a court reviewing a case for apparent unlawful command influence is explicitly licensed to consider “public perception[s]”[1] of “fairness.”
 
Given such a doctrinal license, and given a case involving the most egregious and high level politicization of a criminal case in recent memory, CAAF had a chance in Bergdahl to make a proclamation about its institutional status and about the military justice system more generally—to proclaim that the system was truly independent of command influence (especially of politician-commanders), and that it would stand as the guarantor of that independence. CAAF had the chance to go on record that it would not condone criminal punishment resulting from a politicized process. Such a message in this era of politicized military justice—this era in which a president criticizes the light sentences of some, but pardons others and invites them on the campaign trail—would have been most welcome.
 
Of course, CAAF did not do that. It descended into a burden-shifting maze, cloaking a judgment-call in technocratic language. And even when one descends into the maze with the court, one must conclude that it took wrong turns. Most significantly, the court sub silentio applied the actual UCI test when the question at bar was apparent UCI. The evidence for the claim that the public would perceive no unfairness, according to the court, was that the result did not seem to be affected by the UCI. The case would have been referred to a GCM regardless of the comments, and in any event he pled guilty and received a very light sentence. What this misses is that “fairness” is more capacious a concept than getting a fair result—it is also about fairness in the process. Moreover, one should not so quickly assume away the inevitability of the result. The court suggests that the most important factor (“it cannot be emphasized strongly enough”) in determining absence of unfairness was Bergdahl’s guilty plea. Op. at 20. But guilty pleas take place against a coercive backdrop of government threats, and the court should not have been so easily comforted that a plea erases any procedural unfairness. Indeed, legions of academic studies support the opposite conclusion—that many pleas are themselves the result of an unfair process. See generally, Natapoff, Punishment Without Crime; Bibas, The Machinery of Criminal Justice. Bergdahl’s plea was made in the shadow of the official comments and the public controversy.
 
Two judges realized what was at stake. Judge Sparks’s dissent details a history of the system and of the court that shows that both Congress and the early CMA judges saw UCI as a threat, and that in some sense the whole point of the court was to mitigate it. Chief Judge Stucky went to the heart of the matter: the commander-in-chief’s “vicious and demeaning” remarks were heard by various decisionmakers, and the resultant strain on the system was therefore “intolerable.” In the words of John Hart Ely, “You don't need many heroes if you choose carefully.” Ely, Democracy and Distrust (regarding Earl Warren).
 
[1] One might expect that in a case considering public perceptions, amicus briefs from members of the public would be especially welcome. In this case, though, the court inexplicably rejected two academic amicus briefs: one from myself and LOAC editor Michel Paradis, and a second from eminent historians Jonathan Lurie and Richard Kohn. This is a highly unusual practice for an appellate court.

Brenner Fissell

EIC