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.
24.
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
hearing.
25.
AMY GOODMAN: New York Times
reporter Nick Kulish went on to talk about the lack of transparency in the
handling of the case.
26.
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
absolutely shocked.
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.
This is Democracy Now! When we come back, a Democracy
Now! exclusive—how one woman’s dream became a man’s nightmare for nearly 30
years. We speak with Clarence Moses-EL, out of prison for just the last, oh, 24
or 30 hours, the first time he’s speaking publicly nationally. Stay with us.
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