“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.
6 Also sometimes attributed to Clemenceau or even Voltaire.
10 Most recently: https://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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