1. AMY GOODMAN: Is the military justice system bowing to political pressure while covering up major crimes? We look today at two cases in the U.S. military with very different outcomes. The first is the most well known, involving the alleged desertion by a U.S. soldier in Afghanistan. The second case involves the abuse of prisoners in Afghanistan that resulted in death. This case has received far less attention, and unlike the desertion case, there have been no serious charges, raising questions about how the military justice system handles crimes within its ranks. In the first case, Army Sergeant Bowe Bergdahl was arraigned this week on charges related to his disappearance from a U.S. base in Afghanistan in 2009.
2. COL. DANIEL KING: Today, Army Judge Colonel Christopher T. Fredrikson convened an Article 39(a) arraignment hearing, December 22nd, on Fort Bragg in the case of U.S. Army v. Sergeant Robert B. Bergdahl.
3. AMY GOODMAN: Bergdahl was captured by the Taliban and held for five years, suffering extensive torture. The Taliban freed him last year in exchange for five Guantánamo prisoners. Bergdahl has said he walked off his post in an attempt to reach another U.S. base and report wrongdoing in his unit. He has been ordered to a general court-martial, where he faces a possible life sentence.
While Bergdahl is being court-martialed, a group of Navy SEALs, who allegedly beat an Afghan detainee to death, were not. Just days before Bergdahl’s arraignment, a New York Times exposé revealed the killing and a possible cover-up that goes up the chain of command. In May 2012, members of a Navy SEAL team abused detainees at an outpost in southern Afghanistan. An internal report says three Navy SEALs dropped heavy stones on the detainees’ chests, stomped on their heads and poured bottles of water on their faces in a modified form of waterboarding. One of the detainees was so badly beaten that he eventually died from his injuries. Four U.S. soldiers reported witnessing the abuse, but Navy commanders chose a closed disciplinary process usually reserved for minor infractions. The SEALs were cleared of any wrongdoing. Two of the SEALs implicated in the abuse of the detainees and their lieutenant have since been promoted.
Bowe Bergdahl has received far different treatment. His arraignment this week came after Army General Robert Abrams ordered him court-martialed on charges of desertion and misbehavior against the enemy. Abrams’ decision came despite the recommendations of two independent Army experts. The Army officer who led the Bergdahl investigation, Major General Kenneth Dahl, testified that imprisoning Bergdahl would inappropriate after years of Taliban captivity and torture. Dahl also raised concerns about Bergdahl’s mental health, saying he may have been delusional, but that his beliefs about wrongdoing in his unit were sincere. The Army lawyer who presided over Bergdahl’s preliminary hearing also recommended against prison and said Bergdahl should go before a special court-martial where his maximum possible punishment would be a year of confinement.
Critics say General Abrams may have bowed to political pressure. Republicans have denounced Bergdahl since the prisoner swap was reached. Senate Armed Services Committee chair, Senator John McCain, has vowed to hold hearings if Bergdahl isn’t punished. A recent House Republican probe said the Taliban prisoner exchange violated federal law. And on the campaign trail, front-runner Donald Trump has called Bergdahl a traitor who should be executed. The search to find Bergdahl involved thousands of soldiers, and Republicans have said several were killed in the process. But the Army’s investigation found no evidence to support that claim. And while Bergdahl faces continued Republican-led attacks, the Navy SEALs story has been met by a wall of official silence.
For more, we’re joined by a former top military lawyer who has criticized the court-martialing of Bowe Bergdahl while calling for the Navy SEAL abuse case to be reopened. Rachel VanLandingham is a 20-year veteran of the U.S. Air Force, where she served as a military lawyer. From 2006 to 2010, she served as chief legal adviser for international law to U.S. Central Command under Generals Martin Dempsey and David Petraeus. She is now associate professor of law at Southwestern Law School.
Welcome to Democracy Now! It’s great to have you with us.
4. RACHEL VANLANDINGHAM: Thank you, Amy. It’s great to be here. And I’d like to say thank you so much to all the brave young men and women that are currently serving in uniform far from home during these holidays. Thank you.
5. AMY GOODMAN: Well, Professor VanLandingham, why don’t you lay out for us this contrast between these two cases—one that’s extremely well known, Bowe Bergdahl, and another that many say has been covered up, the case of the Navy SEALs in the death of an Afghan detainee, not to mention the torture of others?
6. RACHEL VANLANDINGHAM: Amy, thank you. I think you laid out the facts well at the beginning of this segment. The concern with Sergeant Bergdahl’s case is that it’s irrevocably tainted by the improper and, I think, illegal congressional statements, congressional pressure, put on the military and the military’s top leaders regarding disposition in a current pending military case. When you have the chairman of the Senate Armed Services Committee, John McCain, threatening to hold hearings if Sergeant Bergdahl isn’t punished, at the same time the four-star general—who, by the way, must go before the Senate Armed Services Committee for reconfirmation for his next assignment—when Senator McCain is threatening to hold hearings if Sergeant Bergdahl isn’t punished, it’s unclear how that general can make any other decision besides to prosecute Sergeant Bergdahl. And Sergeant Bergdahl, of course, deserves individualized justice, justice that’s free from pressure from Capitol Hill. Of course, Congress has oversight of the military justice criminal system, and they’re charged by the Constitution to make rules governing the regulation and government of the military, but that’s systemwide. They should not be making public statements demanding a particular outcome in an ongoing—an outcome in an ongoing criminal case.
7. AMY GOODMAN: So you think Bowe Bergdahl should not be court-martialed?
8. RACHEL VANLANDINGHAM: Frankly, personally, I do not think he should be court-martialed. The issue isn’t whether he can be. There’s certainly enough evidence that he could be. It’s the issue is whether he should be. And we’ll never know whether he received fair and appropriate consideration for the extenuating and mitigating circumstances, because of the avalanche of congressional pressure. It was not just Senator McCain. The Office of Legislative Affairs, in the Army legislative affairs, has received numerous phone calls and letters since Sergeant Bergdahl was transferred back to U.S. custody, demanding particular outcomes in his case. And that’s just—it’s really unheard of, and it irrevocably taints the fairness of that decision.
But on that decision, there are numerous reasons why an individual should be court-martialed. There are purposes of punishment, and the commander here, General Abrams, had to weigh those purposes of punishment. And it comes down to weighing—to balancing the scales. Sergeant Bergdahl was—the Army was criminally negligent in bringing Sergeant Bergdahl and enlisting him and putting him on active duty. He had been discharged two years prior by the Coast Guard for mental health issues. So what does the Army do? They enlist him, and they send him to an observation post out in the middle of nowhere in Afghanistan on a combat mission. The Army’s own psychiatrists have diagnosed Sergeant Bergdahl as having suffered a—what they call a severe mental disease or defect at the time that he made the decision—the criminal decision—to leave his post.
But you weigh that decision and those factors and, of course, the huge amount of impact that was felt on the unit, the thousands of men and women that you mentioned went searching for Sergeant Bergdahl—you weigh that against the over—the almost five years of torture and the lifelong pain and suffering and impact that Sergeant Bergdahl will suffer because of his—because of his lack of judgment at that time, the lack of judgment that apparently was very much influenced by his mental health condition, it just seems like the purposes of punishment, such as deterrence, rehabilitation, incapacitation and retribution, simply are not there. Rehabilitation and incapacitation are off the table. He doesn’t need to be kept away from society because he’s a threat to society. So this case comes down to deterrence, Amy, and retribution.
The loudest deterrent message that could ever be sent was already sent five years ago when, within a few hours of Sergeant Bergdahl leaving his base, he was captured and subject to horrendous torture. One of the Survival, Evasion, Resistance and Escape professionals that testified at his preliminary hearing said that Sergeant Bergdahl suffered the worst conditions in over 60 years of any military prisoner, American military prisoner, and that he will—and that he will have irrevocable, lifelong damage because of that. He also testified that Sergeant Bergdahl honorably tried to escape over 10 times while he was in captivity. And it’s part of the American soldier’s code of conduct to attempt escape as many—and to resist capture while you are—while you face captivity. And Sergeant Bergdahl honorably did that. So when you balance those scales, it comes down to the sole reason to punish, and therefore criminally prosecute, Sergeant Bergdahl is retribution. It’s eye for an eye. It’s just desserts. And hasn’t Sergeant Bergdahl faced just desserts with over five years—almost five years of torture?
But, however, that question is almost mooted, because one can never—can’t separate the congressional pressure and the public calls for Sergeant Bergdahl’s head made by Congress, Congress that controls the purse strings for the Department of Defense and for the Army, never mind controls the personal fate of the general that’s deciding Sergeant Bergdahl’s fate. You can’t—you can’t separate the two. So it seems like it is tainted. And I do hope the Court of Appeals for the Armed Forces, who is appropriately charged with daily oversight of the military justice system—I do hope that they will eventually find that there has been such improper pressure in this case that justice simply cannot be meted out. Even if General Abrams all along wanted to court-martial Sergeant Bergdahl, that decision is not made in a vacuum, and it can’t be separated from Capitol Hill’s meddling.
9. AMY GOODMAN: Season two of the popular podcast Serial centers on the story of Army Sergeant Bowe Bergdahl. The podcast’s producers teamed up with filmmaker Mark Boal, writer and producer of The Hurt Locker and Zero Dark Thirty. He’s working on a film about Bergdahl and had amassed nearly 25 hours of recorded telephone conversations, which he made available to Serial. In this clip, Bergdahl explains to him that he walked away from his outpost in Afghanistan to set off an alert called a DUSTWUN, or duty status-whereabouts unknown, set off when a soldier goes missing. Bergdahl explains he wanted to call attention to bad leadership in his unit.
10. BOWE BERGDAHL: And what I was seeing, from my first unit all the way up into Afghanistan, alls I was seeing was, basically, leadership failure, to the point that the lives of the guys standing next to me were literally, from what I could see, in danger of something seriously going wrong and somebody being killed. Now, as a private first class, nobody is going to listen to me.
11. MARK BOAL: Of course.
12. BOWE BERGDAHL: Nobody is going to take me serious if I say an investigation needs to be put underway, that this person needs to be psychologically evaluated.
13. MARK BOAL: Right.
14. BOWE BERGDAHL: A man disappears from a TCP, and a few days later, after DUSTWUN is called up, he reappears at a FOB? Suddenly, because of the DUSTWUN, everybody is alerted. CIA is alerted. The Navy is alerted. The Marines are alerted. Air Force is alerted. Not just Army.
15. AMY GOODMAN: Now, that’s Bowe Bergdahl speaking to Mark Boal. I want to turn to another clip from the popular podcast Serial. In season two, episode two, filmmaker Mark Boal asks Bowe Bergdahl how he explained to the Taliban why he walked away from his outpost.
16. BOWE BERGDAHL: So I told them I basically was fed up with the commanders. You know, you have to remember, this is kind of going through—this is being filtered to the point that, you know, I’m trying to get guys who barely speak English to understand what I’m—you know, what I’m saying.
17. MARK BOAL: Yeah, totally.
18. BOWE BERGDAHL: So, the feeling was basically along the lines that, you know, I was fed up for American commanders because they were like disrespectful. But that didn’t work, because they didn’t understand what “disrespectful” was. So I came up with “rude,” and they seemed to understand what “rude” was, for some strange reason.
19. AMY GOODMAN: Later in the Serial podcast, we hear from a member of the Taliban. This is Mujahid Rehman describing his first impressions of Bowe Bergdahl in captivity.
20. MUJAHID REHMAN: [translated] He couldn’t even eat. He couldn’t drink nor sleep. And then, because he was thinking that—what type of people we might be, and what are we going to do with him. Are we going to kill him? And were we going to behead him? Or, what are we going to do with him? So, that was his situation. He was very scared and weak and confused.
21. AMY GOODMAN: So, Professor Rachel VanLandingham, talk about the significance of what we’ve just heard, these excerpts of the Serial podcast.
22. RACHEL VANLANDINGHAM: Well, Amy, I think the significance will be—will be seen during Sergeant Bergdahl’s court-martial this upcoming year. It’s hard to put those totally in context. They do underscore the motive that the investigating officer testified to at the preliminary hearing—that is, that the motive was that Sergeant Bergdahl was afraid for his unit, that he wanted to call attention to leadership failures that he thought endangered his unit. Of course, that does not excuse his decision to do it by endangering his unit, but that has to be weighed against his five years of captivity and his mental health.
23. AMY GOODMAN: So, let’s now talk about the Navy SEAL case. Last week, we spoke with New York Times correspondent Nick Kulish, one of the lead reporters in that exposé, the front page of the Sunday Times, “Navy SEALs, a Beating Death and Claims of a Cover-Up.” The investigation looks into a possible cover-up of an incident where members of a Navy SEAL team stationed at an outpost in Kalach, in southern Afghanistan, abused Afghan detainees in 2012. One detainee had been beaten so badly that he later died of his injuries. Democracy Now! co-host Juan González asked Nick why the four Navy SEALs implicated in the case weren’t court-martialed.
NICHOLAS KULISH: I think that’s
the biggest question that remains. I think that, you know, the former JAGs that
we spoke to, Judge Advocate General Corps military lawyers, all said that the
logical next step would have been an Article 32 hearing. That’s similar to a
grand jury for the military. I think some people might be familiar with it,
because Bowe Bergdahl recently had an Article 32 hearing. But for some reason,
that did not take—that did not take place. The Navy captain, Robert E. Smith,
said that he believed that conflicting statements between the Naval personnel
and the Army soldiers was enough that he should handle it with his own closed
25. AMY GOODMAN: New York Times reporter Nick Kulish went on to talk about the lack of transparency in the handling of the case.
NICHOLAS KULISH: In fact, the
witnesses did not know what had happened, what the disposition of this case
was. They believed that they were testifying at a court-martial, when in fact
it was just the—what’s called the captain’s mast procedure. And I think it’s
fair to say that they were stunned when they learned that the people involved
had been—that the SEALs who they had accused had been promoted. They were
27. AMY GOODMAN: Professor Rachel VanLandingham, you’re not only a professor, but you are a former Air Force military lawyer, for years serving as chief legal adviser for international law at U.S. CENTCOM under Generals Dempsey and Petraeus. Talk about the significance of this Navy SEAL story and what happened to them—or didn’t.
28. RACHEL VANLANDINGHAM: Well, Amy, first of all, as you know, the vast majority of U.S. servicemembers serve honorably and have nothing to do with this type of criminal activity on the battlefield. And it’s testament to the U.S. military that when criminal activity like this does occur, particularly on the battlefield, that a swift, appropriate action is taken. And that’s what’s most concerning about this case. And it reflects an overall lack of oversight, it—over an accountability for decisions regarding how to handle misconduct in the military, particular decisions regarding battlefield misconduct.
Two years ago, in 2013, the Department of Defense itself, in a high-level panel, recommended that decisions regarding misconduct on the battlefield, disciplinary decisions, should be handled by the combatant commander, the commander in charge of the combat operations, such as someone like General Petraeus, because they saw too often that misbehavior on the battlefield was sent home, was sent back to the respective service, such as the Navy SEALs case here was sent back to the Navy and the SEAL command, to be handled—or, unfortunately, swept under the rug. And that’s what happened here.
What’s even more disconcerting—well, first of all, it’s outstanding that the four Army soldiers here did the right thing despite being afraid of the Navy SEALs, did the right thing and reported the egregious abuse that they witnessed. And one of the Army soldiers had a terrific quote; he said, “You can’t squint hard enough to make this gray.” This was not a gray incident; this was a black-and-white incident of horrific abuse by Navy SEALs against an Afghan detainee, that, according to all the facts that were laid out in the investigation, led to that detainee’s death. War crimes occur on the battlefield. They will always occur, because the battlefield is a horrible place, and human beings sometimes succumb to the temptation on the battlefield. However, the fidelity to the rule of law, the disciplinary action that’s taken after the crime, is what really is a testament to the military. And here, the military failed.
There was significant obstruction of justice in this case. The Navy SEAL commander who originally received reports of this abuse did the right thing. He immediately sent this Navy SEAL team home. This was Commander Hayes. He was in Afghanistan. He sent this Navy SEAL home, back to Norfolk, Virginia, and said—and told the commander there, “You need to take appropriate action. These individuals should no longer be SEALs.” There was a criminal investigation that was conducted that produced overwhelming evidence—four different eyewitnesses just from the Army side, as well as some Navy personnel and Afghans, as well, that witnessed these crimes—more than sufficient evidence to warrant the beginning of criminal prosecution. But instead of that, the Navy commander back home allowed some of his senior enlisted noncommissioned officers to badger and harass these Army soldiers, these Army soldiers that were—one of them was on his fourth combat tour—called these Army soldiers to have a video teleconference, while they were still downrange, months after they had witnessed this incident, and badgered them, and to harass them and pressure them to try to change their story. The fact that that was allowed to happen is beyond the pale, and the Navy absolutely should be looking into this and investigating that obstruction of justice.
Also, they should be looking into why that Navy commander then allowed that separate VTC to be his basis to say, “Well, I really shouldn’t court-martial these individuals. There are some inconsistent statements.” Well, the inconsistent statements were how many times the rock was actually dropped on the detainee’s head. Was it three times? Was it eight times? Yes, those were inconsistencies, but it was clearly an excuse to allow that commander to sweep this under the rug. The only thing that occurred as a consequence of this potential murder, the death of a detainee in U.S. custody, was that a few of the Navy SEALs received a nonpunitive—just a letter of counseling, saying, “Make better decisions downrange next time.”
So, up the chain of command, where was the outcry here? Well, there was no outcry, because there is no formal mechanism for tracking military justice decisions, for looking at them, providing lessons learned and sharing those lessons learned across the services. Amy, there’s supposed to be this Uniform Code of Military Justice, “uniform” meaning it applies to all the separate services. But it’s not uniform. The systems handle the military justice cases often very differently. And there is no systemic-wide tracking and accountability system. Commanders are rarely, if ever, held accountable—never mind not promoted—for decisions they make regarding the initial disposition decision, the decision whether or not to take action in a particular case. And that has to change. And this case really should break open wide that systemic problem. And this is what Congress should be focusing on, instead of calling for a particular outcome in one case, such as—and a pending case, such as Sergeant Bergdahl, they should be performing their oversight role appropriately and looking at the entire system.
29. AMY GOODMAN: Do you think these Navy SEALs should be charged with murder, Professor VanLandingham?
30. RACHEL VANLANDINGHAM: Yes, I think they should be charged with manslaughter.
31. AMY GOODMAN: And is there any possibility, or is the case entirely closed?
32. RACHEL VANLANDINGHAM: Yeah, well, the case is not closed. These individuals are still on active duty. The statute of limitations has not passed. I think, in addition to abuse and manslaughter charges, there should be obstruction of justice charges brought against the enlisted individuals that were allowed to hold the video teleconference against the witnesses, that—the Army witnesses that stood up and honorably did the right thing here. And there should also be a dereliction of duty investigation and disciplinary action and perhaps a charge against that Navy commander that swept this under the rug.
33. AMY GOODMAN: And finally, the “kill team,” yet another story, this one in 2009 in Afghanistan, if you could just briefly summarize—we have about a minute—and what should happen with this story, this case, the number of people killed, those who should be held accountable?
34. RACHEL VANLANDINGHAM: Well, the kill team was an example of the Army doing the right thing—unlike the Navy SEALs in this case—the Army doing the right thing in which it prosecuted, held court-martial, numerous courts-martial for individuals that were involved in not just a killing, but taking souvenirs, war souvenirs, such as fingers off of dead bodies in Afghanistan. When the Army discovered this, these criminal actions, it court-martialed its individuals, and they are now sitting in jail. However, it did nothing for the lack of leadership of that unit that allowed such ill discipline to occur.
35. AMY GOODMAN: Rachel VanLandingham, I want to thank you for being with us, associate professor of law at Southwestern Law School, 20-year vet of the U.S. Air Force, where she served as a military lawyer. From 2006 to ‘10, she served as chief legal adviser for international law to U.S. CENTCOM under Generals Dempsey and Petraeus. Thank you so much for joining us.
36. RACHEL VANLANDINGHAM: Thank you, Amy.
37. AMY GOODMAN: She joined us from Los Angeles.
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