If Found Guilty, Should Bergdahl Be Sentenced to Death?

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Mon, Mar 30 - 9:00 am EST | 4 years ago by
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Lines of Departure - Bowe Bergdahl

“We interrupt our regularly scheduled programming…”1

The Bergdahl Case.

Caveat 1: I am not a JAG. I have never been a JAG. I have never wanted to be a JAG. I’m just a grunt with a law degree.

Caveat 2: I’m not the finder of fact in the Bergdahl case. I haven’t seen what’s going to be introduced into evidence. It would be inappropriate for me – and it’s not a lot better for you – to comment on questions of innocence or guilt.

Those things being said, I think – I sense – that, across wide swaths of the country, many people simply don’t understand the seriousness of the charges. Fewer still understand the appropriateness of the maximum penalties. The maximum penalty for desertion in wartime? Death.2 The maximum penalty for misbehavior before the enemy? Death.3 Whether capital punishment had been ruled off the table I do not know. Whether ruling it out was offered as part of a plea agreement I cannot say. The Washington Post’s article on the case doesn’t fill me with confidence…in The Washington Post.4

Death? Why we rarely give death in these enlightened times to axe murdering child rapists. Death? Surely you’re kidding, Kratman.

No. Military law is different. For example, though Bergdahl isn’t charged with mutiny, to understand the difference look at this, Article 94, Uniform Code of Military Justice, Mutiny or Sedition:

(a) Any person subject to this chapter who–

(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;
(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or disturbance against that authority is guilty of sedition;
(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.

Now look at those lines I highlighted. Any idea what they mean? Look to that key word, “utmost.” That means anything up to and including deadly force, which is to say, in effect, summary execution. Summary execution? When USS Constellation fought the French ship, L’Insurgent, in 1799, she lost one man. A member of a gun crew “flinched from his gun,” and was duly shot by the third lieutenant to whose division he belonged.5 When I think of “flinched from his gun,” I see, in my mind’s eye, a young sailor — quite probably a teenager — understandably scared to death, crawling to what he imagines is the safest part of the gun deck, then covering his head with his arms and weeping like a lost soul, right up until his lieutenant blows his brains out with his pistol. Wait; you did know that officers and military police aren’t issued pistols solely for their personal convenience, right?

And that wasn’t even mutiny, which is far more serious. Indeed, mutiny is so serious that you can be executed merely for failure to do anything up to and including summary execution to suppress one.

Again, military law is different.

Everyone’s heard this Groucho Marxism: “Military justice is to justice as military music is to music.”6 I’m sure that everyone, or nearly everyone, also takes that in the precise sense that Groucho meant it, that military justice and military music are both primitive and bad, especially in comparison to civilian versions. Groucho, however, along with those who agree with him, are wrong in several particulars. Somewhat trivially, I defy someone to defend a claim that Beethoven’s “Yorcksche Marsch”7 is either primitive or bad, especially in comparison to, oh, say, “Move bitch, get out the way, Get out the way, bitch, get out the way.”8 Even as I smile over that little paean to the traffic jam, I note that the US military was requiring what amounts to Miranda Warnings long before the Supreme Court required them, generally.

In another – much more important – sense, though, it is true; “Military justice is to justice as military music is to music” because both military justice and military music serve the needs of war, which is to say the needs of the organizations that wage war and of the states that raise and support those organizations. We have shot a man who flinched from his gun. We have hanged people for mutiny after not even the briefest of trials, and found that the commanding officer hanged them for good and sufficient reason.9 We have shot deserters, as well.10 We have done these things because of the needs of war, and out of a desire to do justice to our country, her people, and the Soldiers, Sailors, Airmen, and Marines who stand to defend her.

“[I]t is good to kill an admiral from time to time, in order to encourage the others”
~ Voltaire, Candide

Pity about Voltaire, really; like most intellectuals he was convinced beyond a shadow of a doubt that he understood perfectly some things he did not understand at all, hence sometimes could not learn. I can be a slow learner about some things; it’s true, but, at least, I can learn. Eventually. In this case, it was several months into my second company command (of three), and in the process of thinking about some non-judicial punishment I was about to offer a wayward troop, in lieu of court martial, when I suddenly realized that we don’t punish miscreants to encourage anybody.11 Neither do we punish to deter, for the most part, though the punishments we award may deter. Nor even do we generally punish – at least in the military – to rehabilitate, or to disable. No, the mass of the men can’t be deterred, or not very much, by any of things we can do to them, and certainly even less by what we do to others. If they were that weak in character they’d be fairly useless to us.

What does happen, though, is that when bad conduct is, in effect, condoned by failure to punish, we demoralize the others. We make them feel that their righteous conduct is valueless. We make them feel that they’re suckers for toeing the line. Looked at another way, the soldier doesn’t stand in line of battle, risking his life as he does so, because you might shoot him if he runs. He stays there because his own self-respect demands it. If, however, you fail to shoot those who do run away, then you disentangle his self-respect from his duty, and then he might run, as might a few score – or a few million – others.

Is this irrational? Well…

“A rational army would run away.”
~ Charles de Secondat, baron de Montesquieu

“Bu’ bu’ but…reasonable fear! Lack of mens rea! Broken home! Children at home! PTSD!”…those, or any of a million modern and not so modern contrivances mean nothing. So what? Military justice is not about justice to the individual, except insofar as it’s necessary to make every soldier doing his duty feel that he’s not subject to arbitrary whim and that, if he does his duty, he will not be subject to the shame of criminal trial. Military justice is what is necessary to obtain justice – which is to say, solid battlefield performance – from our combat forces and to obtain justice – which is to say, victorious survival – for our country.

“Bu’ bu’ but…it’s unjust! It must be changed!” Change war first – and you can’t – or see the country go under, eventually, due to inability to field a battleworthy military.

So, in summation, while I will not comment on Bergdahl’s guilt or innocence (and neither should you), should he be found guilty, and should he be sentenced to death – as he should be, if found guilty – and should the Army go for a more traditional form of execution, then the Army need look no further for someone to command the firing squad and – however reluctantly – to administer the Coup de Grace. On the other hand, that’s a forlorn offer. If Bergdahl were to be found guilty and sentenced to a more traditional death, there will be about fifty thousand volunteers for the job, and at least four hundred thousand volunteers to man the firing squad.


1 I’ll renew the discussion of China and war in a week. This, however, seems timely.

2 http://www.ucmj.us/sub-chapter-10-punitive-articles/885-article-85-desertion

3 http://www.ucmj.us/sub-chapter-10-punitive-articles/899-article-99-misbehavior-before-the-enemy

4 http://www.washingtonpost.com/news/checkpoint/wp/2015/03/25/bowe-bergdahl-once-missing-u-s-soldier-charged-with-desertion/?hpid=z1

5 https://archive.org/stream/historyofnavyofu03coop/historyofnavyofu03coop_djvu.txt

6 Also sometimes attributed to Clemenceau or even Voltaire.

7 https://www.youtube.com/watch?v=TpAdoxR6Cic

8 http://www.azlyrics.com/lyrics/ludacris/movebitch.html

9 http://en.wikipedia.org/wiki/Philip_Spencer

10 Most recently: http://www.history.com/this-day-in-history/the-execution-of-eddie-slovik-is-authorized

11 The precise circumstance was seeing that a previously punished troop was on hands and knees, where Top had set him, scrubbing the tile in the hallway in the orderly room. It was very public. As an aside, I never acquired a taste for giving out much NJP, and, in my smaller rifle company, rarely did, preferring to arrange things so my non-coms could handle most problems: “You see, boys, when your sergeant drops you for pushups, or puts you to work on something after hours, he’s paying you a kind of mild compliment. In effect, he’s saying, ‘Well, I could take you to the CO who would rip you a new one and bust your ass to boot. But I’ll give you this voluntary way out of that.’ You need not, of course, accept his kind offer, but in that case….”

However, on the second company command, a mechanized infantry battalion Headquarters and Headquarters Company, three hundred and seventy-two mo-fos counting everybody but the colonel, and with most of the company being considerably more REMFish than my previous command, a rifle company, and with somewhat less stout leadership, a certain amount of NJP was unavoidable.

Tom Kratman is a retired infantry lieutenant colonel, recovering attorney, and science fiction and military fiction writer. His latest novel, The Rods and the Axe, is available from Amazon.com for $9.99 for the Kindle version, or $25 for the hardback. A political refugee and defector from the People’s Republic of Massachusetts, he makes his home in Blacksburg, Virginia. He holds the non-exclusive military and foreign affairs portfolio for EveryJoe. Tom’s books can be ordered through baen.com.

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  • Clifford Fargason

    Very well put. I might disagree with you on the numbers willing to volunteer should he be sentenced to death, though. I think you were a bit light there.

    • Tom Kratman

      You’re absolutely right. I was thinking only about active duty, but there are tens of millions of retirees and discharged vets, plus reserve components, who would buy tickets for the lottery.

    • Jack Withrow

      I know at least 50 retirees and vets who are chomping at the bit to enter that lottery.

    • akulkis

      A lottery is definitely a good idea.

      And it could be put to good use.
      Use it to fund a some U.S. Navy littoral boat, and name it “The Execution of PVT Berghdal”

  • R.Armstrong

    Guilty of desertion in time of war? That would be a tough call, largely because I know how terrifying it can be. Could I pass a death sentence? I don’t know.
    Guilty of desertion and aiding or abetting the enemy? Definitely deserves the death penalty. There’s no doubt of that.
    Again, as Mr.Ringo says. I don’t have the details of the case and these opinions rely solely on if he was found firmly guilty by a competent authority. Nor am I particularly gleeful of the prospect of someone dying, even deservedly under the law.

    • Jono

      That is not how you spell “Kratman.”

    • R.Armstrong

      Mr.Kratman* sorry.. I was bouncing between articles. If I know him at all I don’t think he’s offended by the comparison.

    • Tom Kratman

      No sweat.

    • Tom Kratman

      It’s not something to be gleeful over; it’s something that sometimes has to be done.

    • Ming the Merciless

      War is terrifying for everybody, but not everybody runs.

      The soldier may die, the deserter must die.

    • http://batman-news.com Rick Randall

      The specific training I received on battlefield discipline as a way-too-young NCO shook me a little. But they carefully explained the reasoning, and how the summary execution (without trial, if necessary) of one or two runners would not only likely save the *mission*, but it would *save lives*, since a rout is often so, so, terribly bloody. (Not to mention the avoidable deaths of those who *don’t* run, and are therefore abandoned unsupported by those who run because they saw those others run.)

      Panic kills, and is the most contagious disease known to Man.

  • Kevin Crowley

    A tidy analysis of the charges and the environment in which they live.

  • Can

    Lifelong imprisonment. Death is too final in such a nebulous issue.

    • Tom Kratman

      It’s not nebulous if he;s found guilty. It’s a known, certain requirement. Nothing else is good enough to maintain morale and discipline in the ranks. And, unlikely civilian prisons, in military prisons the criminals are not in charge, so the punishment is actually light in comparison.

    • akulkis

      Absolutely. If he gets off without death, I expect morale to fall across the entire army.

      If the President understands this, it will make him only more gleeful to reduce or commute the court’s sentence, if not issue a full pardon.

    • Tom Kratman

      I, of course, per Article 88, cannot comment.

  • Pugmak

    I think we’re already seeing… whatchamacallit… undue command influence? Is that the proper term? from the White House.

    I doubt that there’s any real hope of actual justice of any sort or kind in this case.

  • SirBrass

    Too bad he wouldn’t be executed even if sentenced to death.

    My wife is a JA in the USMC (I’ve been told that JAG is incorrect in relation to marines, since there is no marine JAG… just the Navy one), and in talking about his possible execution if found guilty she informed me that for a member of the armed services to be executed under the UCMJ, the President would have to order his death. Till then, he (or she) would just sit and rot on death row.

    • Tom Kratman

      Yes, but we all know what you (or she) mean if you say “USMC JAG.”

      And I don’t see any presidential candidates with the balls to do what needs doing either. Well…I suppose Hillary might, but only if it were to her personal advantage.

  • Jack Withrow

    Col, Thank you for making the point that if Bergdahl is found guilty, it is imperative that he get the death sentence to maintain good order and discipline in the Army.

    • http://batman-news.com Rick Randall

      He *can’t* get the death penalty, as I understand it, because of the specific charges they laid. They didn’t charge him with desertion in wartime, they charged him with a lesser level – desertion to avoid hazardous duty.

      As I understand it, they charged him for what they felt was a slam-dunk, rather than what would be held to a higher level of proof. Right or wrong, they played it safe.

    • Tom Kratman

      Nonsense. Desertion in war and Misbehavior in or out of war carry a max of death.

      Wait; you’re not going to tell me you believe the Washington Post, are you?

    • http://batman-news.com Rick Randall

      I will admit I fell into that trap (although it was presented that way in pretty much *every* article on this.)

      The only real question, then, is whether this is a “time of war”; particularly the question as to whether a war has to be formally declared to count. Given the SCOTUS rulings arising from the Quasi-War, I’d say there is no question – an AUMF is a declaration of war by Congress.

      (For those who don’t recognize the cases, they are over 200 years old, and said that when Congress tells the President he can send out people to go break shit and kill people, that’s a “war”. To expand that logically, if there is a war because Congress has passed a bill to that effect, it is even a “declared” war… Thus an AUMF is a formal declaration of war, because the Constitution doesn’t specify any magic wording to use in a declaration if war.)

  • Duffy

    Worth remembering, but in the case of Eddie Slovik,
    convicted of desertion and sentenced to death, which was subsequently forwarded
    for approval, and every one up to Eisenhower approved the sentence.

    Not that it is a particularly reliable source, but when I read
    the book “The Execution of Private Slovik” it was implied that everyone who
    approved of the execution, did so because they assumed someone above them would
    stop the execution and commute the sentence. I have also heard different, that
    it was a case of increasing numbers of desertions as Combat troops were being
    injured or killed, and replaced with less desirable replacements and people
    pulled from service and support units. Eddie Slovik was in fact, 4-f until the need
    for replacements caused him to be rerated as 1-A. I would not be surprised if
    we find out that Bergdahl might not have been accepted for Military Service 10
    years before he enlisted.

    Keeping that in mind, it is important to remember, Eddie
    Slovik is the only servicemember since the Civil War to be executed since the
    Civil War for the charge of desertion.

    With all that being said, I doubt, if found convicted,
    Bergdahl will be executed. Indeed, I would settle for a dishonorable discharge
    and no VA benefits except those Medical Treatments dealing with any medical
    issues recognized up to and not after, the point he was determined to have
    deserted his post.

    • Tom Kratman

      I wouldn’t settle, but it;s likely what we;ll get. And we;ll deserve what we get, too, next time we get into an existential war.

    • http://batman-news.com Rick Randall

      So long as he is *publicly* stripped of his honor, declared unfit, and cast out with a DD (and a lifetime status as a convixted felon) and no benefits of service (other than perhaps, as stated above, treatment for service related health issues predating his desertion), I can eat an amazingly large shit sndwich of him not living in the Leavenworth Disciplinary Barracks until he dies of old age or does the honorable thing and hangs himself.

      I’d rather see him de of Alzheimer’s in Leavenworth (since he’ll never dance to Danny Server), but I can accept almost any commutation so long as he is convicted and Dishonorably Discharged in the end.

  • Tim_Birch

    If he broke the faith. Put him against the wall. Cut the rot out. UCMJ gets explained to everybody. The rules are the rules. Break the rules and you know or have a pretty good idea what to expect.

  • Ming the Merciless

    I’d be more worried about desertion if we weren’t fighting stupid wars, for stupid reasons, by stupid methods, with corrupt, stupid (political and military) leadership that doesn’t even want to win. Heck, I’m surprised that anyone signs up to fight in the first place, let alone that they don’t all run away as soon as they find out how effed up things are.

    • Tom Kratman

      And yet they do sign up. And yet we need them to sign up in the future. And yet the reason for the war, good or bad, to someone who has signed up – hence volunteered is irrelevant.

    • Clifford Fargason

      I joined the Army in 1972, retired in 2003 and was recalled to active duty in 2006 – 2007. Every conflict during my time in service was considered to be “stupid” by some numbers of people. But nothing in my oath of enlistment mentioned any kind of out for “it was a really stupid war”. I knew going in what could be expected of me from my father and older brothers. And the three of my sons who enlisted knew before they raised their hands what would be expected of them.

      A deserter during a time of war, especially in an all volunteer army, should be executed. Hundreds of men were exposed to unnecessary risk and some died in efforts to find and rescue him. In civilian law, if a guy is an accomplice to a crime where someone is murdered he can be charged with murder. If Bergdahl is found to be guilty of leaving his post then in my mind he is responsible for the deaths of those who were killed trying to rescue him.

      Disclaimer: I am not a lawyer, sat on a jury once and will probably never be invited back. But my opinion is worth every cent you just paid for it.

  • Mark Andrew Edwards

    Your article is longer than what I would have written* but yours is better for the time, thought and citation. But for all your words, I suspect he’ll live, even if convicted. Presidential pardon if quiet words from the Secretary of the Army did not suffice.

    *(After that article title, the main body would just have been: Yes)

    • Tom Kratman

      And thus does a civilization commit suicide.

      I agree with you, eve if found ridiculously guilty, he’ll be neither shot nor hanged nor needled.

    • akulkis

      In which case, he will probably be murdered in the street.

      Or in his bed, as he sleeps.

      The man is a modern day Benedict Arnold, and should never have a day’s rest until he is either dead, or has fled the country leaving all of his posessions behind.

      A lot of ex-military are in the airline business. It wouldn’t be hard for someone to arrange for his disappearance on his one-way flight to whatever leftist-run European country which would be foolish enough to accept him.

    • Tom Kratman

      Probably not. The USDB is unusual because it’s a prison where the prisoners are _not_ in charge.

  • Luis Cedeno

    Every military member understands what offences deep six you (at least they had the class back in my day). If found guilty, he must be executed.

  • Ming the Merciless

    I just finished a book about the Battle for Berlin. The Germans summarily executed large numbers of “deserters” (often just men retreating without permission). I kinda wondered – didn’t any of the “deserters” fight back? They were presumably armed. So were the military police, but I have never read any stories of shootouts between retreating soldiers and the Feldgendarmerie.

    • Tom Kratman

      Probably didn’t believe it would happen until they were disarmed, at which point, too late.

  • El Paso Mark

    “I am not a JAG. I have never been a JAG. I have never wanted to be a JAG.” Did you stay at a Holiday Inn Express last night?

    Seriously though, even if he’s found guilty and sentenced to death (What are the chances of that happening to obummer’s darling?) that (Execution) is not likely to happen, is it? That POS Quintanilla, Jesse A USMC who murdered his XO and shot his 1st Sgt. in 1996 was sentenced to death, but recently had his sentence commuted to life in prison WITH THE POSSIBILITY OF PAROLE!

    How many of those sentenced to death by the military since Slovik/WWII have actually had sentence carried out? Zero I believe. So Bergdahl, if sentenced to death, will live out his life on death row, finally dying of natural causes. Or have his sentence commuted at a later date (More likely) and live out his life in prison. Or be set free.

    Yeah, I’m pretty jaded.

    • Tom Kratman

      Not likely at all. But then, as mentioned, our civilization is almost certainly doomed.

    • El Paso Mark


    • akulkis

      The court could drag out the proceedings until Obummer is out of office, just to preclude his interferance with their sentance.

  • chrisgale

    Tom, if a traitor, he should be demoted first, and then hung. He deserted. He does not deserve the hoinour, if found guilty, of a bullet.

    • Tom Kratman

      Shooting is traditional for us, actually.

    • akulkis

      In the military, a firing squad is a dishonor.

      A formal hanging demands elaborate preparations — making the scaffolding, etc.

      A firinq squad demands only handing out 6-12 pre-loaded rifles
      (so that none of the shooters knows if he is firing a bullet or blank),
      and finding a suitable bullet-absorbing mass for the condemned to stand in front of.

    • Tom Kratman

      And rehearsals, of course.

    • chrisgale

      You are not going back far enough. In Napoleonic times, it took a tree and a rope, or rafter, or even a cart (unhitch cart, weight it, use rods that attach to the harness). Put the regiment around three sides and go for a short drop. Being shot was quicker and more dignified. https://youtu.be/9ZgNosQ8oCY

  • Chadd Newman

    As a young PL, I had the good luck to have a great PSG explain the advantages of “additional training” versus NJP to me. It’s amazing how creative a good NCO can be at getting a young private’s mind right. In the particular instance I remember, the PV2 in question was fresh out of high school, married and a new father. He was also living off post in a trailer park because the wait for on-post housing at the time was something like 18 months. After the third time he showed up late to formation, I was ready to give him an Article 15 when my PSG pulled me aside and explained that taking half the kid’s pay would make a bad situation worse, whereas having the kid spend a Saturday digging fighting positions to standard (over and over) would only make him a better soldier and improve his ability to get to work on time, to boot.

    • Tom Kratman

      Yeah, I had four general, if not quite universal, rules for when I did give NJP: 1) just about max them out, but suspend something between a good deal of it and most, 2) always give an “oral reprimand” and make it really, _really_ sting, 3) suspend the loss of money and rank from the married guys, but restrict them that they might suffer lackanookie 4) take money and possibly rank from the single guys, and restrict them.

      If there was a repeat, though, within the four months of suspension all that suspended punishment was imposed and nothing would be suspended from the next one if, indeed, I didn’t remand to a court.

  • Richard Vandiamondsworth

    He should already have been executed.

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