The defense team for alleged deserter Sgt. Bowe Bergdahl says an impending Senate committee's investigation into the case creates a conflict of interest for the officer overseeing in charge: of it: Gen. Mark Milley, who will sit in front of the same panel as part of the confirmation process to become the Army's next top officer.
Lawyers for Bergdahl have asked a military appeals court to disqualify Milley, tapped by President Obama last month to be the Army's next chief of staff, as court-martial convening authority. Military legal minds are split on the validity of the claim, and the head of the committee said the Bergdahl case won't distract from the confirmation process.
Sen. John McCain, R-Ariz., told Army Times last week Wednesday that the Senate Armed Services Committee would begin its official examination of the Bergdahl case "as soon as the final decision is rendered" and that Milley's confirmation won't be affected. The SASC confirmation hearing would be scheduled "as soon as they send [Milley] over," McCain said, but didn't offer a date.
"I was briefed by him in Afghanistan, and I've gotten to know him," McCain said of the nominee, now in charge of Army Forces Command. "I think he's very well-qualified."
Fidell wrote to Milley on May 17, days after his Chief of Staff nomination had been announced, asking the general to recuse himself from the case. Berghdal left his post in Afghanistan and was held by the Taliban for five years. He was exchanged last year for five senior Taliban officials held at Guantanamo Bay, Cuba.
Milley, who made the decision in March to charge Bergdahl with desertion and misbehavior before the enemy, stayed on the job. Fidell filed suit.
"This writ appeal will be addressed by the United States Court of Appeals for the Armed Forces as a matter of pending litigation," an Army spokesman said in a statement. "At this point General Milley only has been nominated for the position of the Chief of Staff of the Army — pending Senate confirmation. So, he currently continues all of his duties and responsibilities as commanding general of U.S. Army Forces Command — including his role as a general courts-martial convening authority." Forces Command trains and deploys land forces to top combat leadership.
Making the legal case
Three former military lawyers who spoke with Army Times had varied opinions on the merits of the disqualification request, but all had at least some doubts as to its success.
citing a variety of factors.
"The suggestion that Gen. Milley is somehow conflicted in this case is speculative, at best," said Daniel Conway, a former Marine captain who has represented members of all military branchesas a civilian defense lawyer. "It's going to be a tall order for them to be able to do this successfully."
However, lawyers for Bergdahl do not have to prove Milley intends to carry out his duties as court-martial authority in a way that would increase his confirmation chances at the expense of justice, a former Air Force lawyer said: They must only show that public perception could lead to such a conclusion.
Such a high-profile case would be better in the hands of a general who would reach retirement
whose career path would put him in retirement
before facing a Senate committee, she said, or one who had
who'd
just assumed a new position and would not
wouldn't
need Senate sign-off, required for all officer promotions, for several years.
The appeals court, VanLandingham said, may choose not to weigh in on the issue. Victor Hansen, an associate dean and law professor at New England Law in Boston, also said he'd be "surprised" if the request were granted, and "would similarly be surprised if it had any real legs at trial, or on appeal."
Part of the problem, Hansen said, is that the Senate's opinion regarding Bergdahl is "not nearly as directed, not nearly as pointed" as other instances where politicians'
politican
s'
remarks have influenced judicial proceedings. He cited a 2013 ruling from a Navy judge in two sex-assault cases claiming remarks by President Obamathat offenders should be "court-martialed, fired, dishonorably discharged, period" constituted undue command influence and would limit punishment options for the defendants.
A possible case study
That example is not the one most associated by lawyers with Milley's situation: In Fidell's letter to the general, he alludes to Air Force Lt. Gen. Susan Helms, whose nomination to become vice commander of Air Force Space Command was blocked by Sen. Claire McCaskill, a Missouri Democrat who serves on the Armed Services Committee, because of the general's decision to overturn a captain's sex-assault conviction the previous year.
While Bergdahl's pre-trial hearing, set for September, likely won't have started until after Milley's confirmation, the general has the power
to
at any time to accept a deal between defense and prosecutors – something expected by many military lawyers.
– at any time.
Also, Conway said, defense lawyers could request transcripts from the hearing, even classified ones, to support their case.
"The prudent action probably would've been a self-recusal," Conway said, "but that's their prerogative and their judgment."
The down side of stepping aside
So, why not step away? VanLandingham said part of the reason may stem from a lack of training given to commanding officers who find themselves in such a situation.
Bergdahl's lawyers cite an academic paper written by VanLandingham in their filing, one that suggests the "vast powers" wielded by courts-martial authorities are "largely unguided by formal direction," which can lead to misuse.
Instead, leaders may see the case as a burden they should carry.
"General officers don't want to feel like they're giving somebody else a raw deal," VanLandingham said. You know, 'I'm not going to just pass the buck.' We very much want our leaders and officers to have that kind of ethos, so I think that can get a little warped in this kind of situation."
Hansen, a former Army JAG Corps officer and instructor, agreed.
"It's just the notion of, 'Clean up my own mess,' " he said. "If he recuses himself, it's going to have to go to somebody else, right? Somebody else is going to have to pick up the responsibility. That's just kind of against the nature of people at that level. They take care of their own problems."
Staff writer Leo Shane III contributed to this report.
Kevin Lilley is the features editor of Military Times.
