The recent release of Army Sgt. Bowe Bergdahl from five years of Taliban captivity raises serious questions, so far not fully answered.
First, did then-private Bergdahl willfully abandon his combat post, leaving his weapon, body armor, and night vision goggles behind? All available evidence points to that conclusion, including Pentagon reports and comments from his fellow soldiers. Members of his platoon have been most critical of his conduct, asserting he did desert his post, dishonoring them, the Army, and our nation.
Whether Bergdahl is a deserter or not is a question of fact. However, the facts that matter are largely lost in the media frenzy over the controversial terms of his release in exchange for five top-level terrorists from Guantanamo.
Fortunately, Bergdahl’s fate will be determined, not by talking heads tripping over each other to get their two cents’ worth of vacuous views in, but by the results of a thorough Army investigation. That investigation will build upon previous information collected since Bergdahl disappeared from Army combat duty in Afghanistan in 2009 and became a prisoner of war.
The Army’s ongoing investigation should clarify what Bergdahl did, and why he did it. Properly conducted, it will also shed new light on his conduct as an American POW.
If the Army’s investigation warrants a court martial for Bergdahl as an alleged deserter, he will be tried under the provisions of the Uniform Code of Military Justice (UCMJ).
Contrary to popular belief, the UCMJ is not some autonomous “kangaroo Court.” Instead, it stems from our U.S. Constitution. Article III states, in part, “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Congress exercised its power granted by the Constitution by enacting the Articles of War in 1806 to regulate land and naval forces. Incredibly, that military justice system survived until 1951, when it was replaced by the Uniform Code of Military Justice. On May 5, 1950, Congress passed the UCMJ. On May 31, 1951, President Harry S. Truman signed it into law. The word “Uniform” in the Code’s title indicates the intent of Congress “to make military justice uniform or consistent among” all our armed services.
The current version of the UCMJ incorporates changes made by presidential executive orders and the National Defense Authorization Acts of 2006 and 2007. The UCMJ is the right route to take for Bergdahl and for American military justice.
Meanwhile, the rest of us would do well to avoid the rush to judgment that is fodder for politicians and pundits, but folly for military justice.
Retired Army Col. Thomas B. Vaughn can be reached at firstname.lastname@example.org.