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Iceland Volcano Erupts For Third Time In 2 Months, State Of Emergency Declared Tucker Carlson Interview with Vladamir Putin Status: Not Logged In; Sign In United States News See other United States News Articles Title: Bowe Bergdahl, once missing U.S. soldier, charged with desertion Source: [None] URL Source: http://www.washingtonpost.com/news/ ... harged-with-desertion/?hpid=z1 Published: Mar 25, 2015 Author: Dan Lamothe Post Date: 2015-03-25 14:36:55 by A K A Stone Keywords: None Views: 11653 Comments: 86 Sgt. Bowe Bergdahl, the U.S. soldier who was recovered in Afghanistan last spring after five years in captivity, faces charges of desertion and misbehavior before the enemy, according to his lawyer. Eugene Fidell, Bergdahl’s attorney, told The Washington Post that his client was handed a charge sheet on Tuesday. Army officials announced they will provide an update in his case at 3:30 p.m. at Fort Bragg, N.C., but declined to discuss new developments ahead of the news conference. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Comments (1-40) not displayed.       .       .       . #41. To: redleghunter (#40) Gitmo is for illegal combatants. Gitmo is outside of any jurisdiction, so anyone can be sent there. A Pole  posted on  2015-03-26   11:12:29 ET  Reply   Trace   Private Reply   #42. To: A Pole, liberator, CZ82, A K A Stone (#41) Gitmo is outside of any jurisdiction, so anyone can be sent there. So that's where Hillery Clinton's email server went! "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   12:32:28 ET  Reply   Trace   Private Reply   #43. To: redleghunter (#38) If the WH was involved in this charge sheet we could have a serious issue with "Unlawful Command Influence (UCI). True, but who is going to do anything about it if it did happen? “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.â€� CZ82  posted on  2015-03-26   12:54:39 ET  Reply   Trace   Private Reply   #44. To: CZ82 (#43) True, but who is going to do anything about it if it did happen? There are still honorable men at the top ranks. Odierno being one. And I knew the investigating officer personally. He was my BDE CDR about 10 years ago. This is a legal way for the military to stuff it back to the Admin. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   13:00:16 ET  Reply   Trace   Private Reply   #45. To: redleghunter (#26) Didn't you also say he would never have charges preferred against him. LOL. He is going before a Courts Martial panel (jury) where seasoned field grade officers and senior NCOs will sit on. He's toast. He is going to the equivalent of a Grand Jury were all charges can be dismissed. He will not be court martialed. I will give you odds that the worst that happens to him is a plea deal where he gets a dishonorable discharge and may not get his back pay. He will not see a day behind bars save for what he may during the so-called trail. The only way I am wrong about this if Obama decides that he can throw Bergdah under the bus with getting mud splattered on the Emperor himself. But the administration's paid liars are still claiming that his trade for 5 terrorist leaders was absolute a good deal. Either way justice will not be served. потому что Бог хочет это тот путь SOSO  posted on  2015-03-26   13:02:09 ET  Reply   Trace   Private Reply   #46. To: TooConservative, nolu chan, redleghunter (#34) As for a pardon, don't you have to have a conviction prior to a presidential or gubernatorial pardon? What was Nixon convicted of when Ford pardoned him? потому что Бог хочет это тот путь SOSO  posted on  2015-03-26   13:05:10 ET  Reply   Trace   Private Reply   #47. To: redleghunter (#42) So that's where Hillery Clinton's email server went! Didn't it come out that some of her assistants had "their own servers too"?? “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.â€� CZ82  posted on  2015-03-26   13:06:22 ET  Reply   Trace   Private Reply   #48. To: SOSO (#45) He is going to the equivalent of a Grand Jury were all charges can be dismissed. He will not be court martialed. It is difficult to 'dismiss' any charges in an Article 32 investigation. We shall see. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   13:14:54 ET  Reply   Trace   Private Reply   #49. To: CZ82 (#47) Don't know. They are all corrupt. At a minimum Hitlery is guilty of willful deception. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   13:22:18 ET  Reply   Trace   Private Reply   #50. To: CZ82 (#47) Didn't it come out that some of her assistants had "their own servers too"?? No, they used hers and had their own personal email accounts too. People like Huma did that anyway. So did Bill & Chelsea (whose longstanding secret travel identity got exposed as a result of this server nonsense). Tooconservative  posted on  2015-03-26   13:25:22 ET  Reply   Trace   Private Reply   #51. To: TooConservative, redleghunter (#34) As for a pardon, don't you have to have a conviction prior to a presidential or gubernatorial pardon? You can't have preemptive pardons issued prior to a lawful finding of guilt. Too much temptation for crooked pols to just pardon all their henchmen in advance. Wrong guess. Manual for Courts-Martial, 2012 Edition, R.C.M. 907(b)(2)(D)(iii), p. II-97 (D) Prosecution is barred by: (i) A pardon issued by the President; nolu chan  posted on  2015-03-26   13:47:07 ET  Reply   Trace   Private Reply   #52. To: redleghunter (#37) Indeed. "Time of war" will be the key factor with Article 85. It will be a zero factor. There will be a zero attempt to even attempt to introduce the term war as a factor. nolu chan  posted on  2015-03-26   13:49:38 ET  Reply   Trace   Private Reply   #53. To: redleghunter (#38) If the WH was involved in this charge sheet we could have a serious issue with "Unlawful Command Influence (UCI). You don't think WH involvement was the cause of the incredible delay? The high military brass are political appointees. nolu chan  posted on  2015-03-26   13:52:59 ET  Reply   Trace   Private Reply   #54. To: redleghunter (#39) And it would be a heavy dose of Unlawful Command Influence (UCI) if the WH was involved at all in the investigation process and charge sheet. It would also pertain to the WH giving tips to the defense attorney as well. UCI is serious business in the Services UCI is endemic to the process. It is all over it. When everyone in the world knows the WH and the military are wrangling about Bowe Bergdahl and military charges, its hard to say that the JAG officers are the only ones out of the loop. The Convening Authority knows what is wanted. Here, the military can deliver only just so much. They could never explain not bring charges. nolu chan  posted on  2015-03-26   13:58:43 ET  Reply   Trace   Private Reply   #55. To: SOSO (#46) What was Nixon convicted of when Ford pardoned him? Pardoning him was the same as convicting him in the court of public opinion. Having praised Bergdahl for his service, Obama pardoning him prior to a court martial would politicize the whole process. And Bergdahl would be assumed guilty as charged (or worse) and Obama would literally be eating his own words after treating Bergdahl as a war hero for his spectacular desertion and consorting with the enemy. Even the libmedia won't cover up for a Bergdahl pardon. I think it would be a sort of breaking point for them. Tooconservative  posted on  2015-03-26   14:03:59 ET  Reply   Trace   Private Reply   #56. To: nolu chan (#51) Wrong guess. Even so, I don't think it will happen. Tooconservative  posted on  2015-03-26   14:08:24 ET  Reply   Trace   Private Reply   #57. To: TooConservative (#55) Even the libmedia won't cover up for a Bergdahl pardon. I think it would be a sort of breaking point for them. Think again. потому что Бог хочет это тот путь SOSO  posted on  2015-03-26   14:11:49 ET  Reply   Trace   Private Reply   #58. To: redleghunter (#38) It is not like this guy deserted before deploying and is sitting up in Canada wanting to come home. That is what a plea is for. A plea is for when avoiding a trial is desired. The Commander-in-Chief does not want a trial. His appointees want what he wants. The military needs a guilty plea. A plea agreement can do that. This probably comes to nothing in the end, but it is interesting to look at the possibilities. Everybody knew for years that Bergdahl had left his unit and was captured. He was promoted to Sergeant, paid for his time in captivity, and returned to duty. That’s all public knowledge. Manual for Courts-Martial, 2012 Edition, R.C.M. 907(b)(2)(D)(iii), p. II-97-98 (D) Prosecution is barred by: (i) A pardon issued by the President; [...] (iii) Constructive condonation of desertion established by unconditional restoration to duty without trial of a deserter by a general court-martial convening authority who knew of the desertion; “A promotion will operate as a constructive pardon on such offense,” Winthrop at 270, U.S. v Mason, excerpted below. Court-Martial Reports of the Judge Advocate General of the Air Force, Holdings and Opinions of the Judge Advocate General, Judicial Council and Boards of Review, Volume 3, (1950) At 174: BOARD OF REVIEW ACM 2289 UNITED STATES v. Private First Class WILLIAM MASON, AF 6712867, Headquarters and Headquarters Squadron, 1100th Air Base Group Continuance — absence of witness — materiality— constructive condonation. At 174-5: Desertion —constructive condonation. 2. A motion for dismissal of a Charge of desertion was made on the grounds of constructive condonation based on the claim that the accused had been promoted from private to private first class after the offense was committed. There was no showing, nor contention that evidence was available to show, that the promotion was made by a commander exercising general court-martial jurisdiction or that his mind was directed to this particular offense and was consciously willing that the accused be granted exception from the consequence of it. The law member, therefore, properly denied the motion. At 176: After the arraignment, but prior to pleading to the general issue, the accused made a special motion to dismiss Specifications 1 and 2 of the Charge, which motion was denied. The accused then pleaded not guilty to all of the Specifications of the Charge and to the Charge. The Court’s findings were as follows: Guilty except the words ‘Wilmington, Delaware’ substituting therefor the words ‘Fort Dix, New Jersey’, of the excepted words, Not Guilty, of the substituted words, Guilty. At 177: 3. Special pleas and motions. Prior to entering pleas to the general issue, the accused moved for dismissal of Specifications 1 and 2 of the Charge “on the ground of constructive condonation” (R. 6). At 179: Having in mind that the record of trial shows that the defense counsel is not a lawyer within the meaning of Article of War 11, the Board of Review has treated the defense counsel’s language regarding the desirability of a continuance as an outright request for continuance for the purpose of obtaining general Hutchinson’s testimony either in person before the Court or in the form of a deposition. At 180-81: Constructive condonation has been considered by Boards of Review of the Department of the Army in situations somewhat similar to that in the present case, i.e., where there was no showing that the suthority competent to appoint a general court-marital restored the accused to duty with full knowledge of the facts concerning the alleged desertion. (CM 298568, Schultz, 24 BR ETO 127, 133; CM 299988, Pagano, 31 BR ETO 121, 130; CM 280227, Stirewalt, 58 BR 115, 119-121; CM 316767, Jones, 66 BR 29, 31; CM 882151, Missik, 3 BR -JC 243, 272). It does not appear that the matter of restoration and condonation has heretofore been the subect of an opinion by any Board of Review of the Department of the Air force, either generally, or upon the precisely defined question of whether such restoration with constructive knowledge of the competent appointing authority can successfully be pleaded in bar of trial for the offense of desertion. Initially, the Board deems appropriate the following language from the Missik opinion, supra, at page 272: “The defense of constructive condonation, although long recognised in military law, is a defense only to the single offense of desertion. . . . [Citing cases.] When interposed as a special plea in bar of trial, it must be supported by the accused by a preponderance of the proof (par 64a. MCM 1928, p-51)” (Italics added). At 181: Proceeding upon this the Board then said, at pages 130 and 131: “. . . For the purpose of this holding, the Board of Review wiil assume, without deciding, that an unconditional restoration to duty without trial by the Staff Judge Advocate of the authority competent to order trial, may successfully be pleaded in bar of trial for the desertion, as constructive condonation by that authority. “The full purport of the conversation between the Staff Judge Advocate and accused, assuming there was one, and any evidence bearing upon the authority of that officer to act for the division commander in the premises, should have been presented by the defense if it intended to establish constructive condonation. Upon the a state of the record, one cannot say that the defense was established or that the court was bound to believe accused’s uncorroborated testimony with respect thereto or that it constituted a discharge of the defense’s burden of supporting the plea, which the Board will assume to have been entered. . . .” At 182: The language of the foregoing opinions suggests that a commander who exercises general court-martial authority need not personally do all the acts requircd to accomplish a condonation of an offense by the unconditional restoration of the offender to duty, but that such condonation may be accomplished by a subordinate officer to whom the commander by either expressly or impliedly delegated either special or general authority to act in his name on such matters. The question of whether a condonation may be accomplished by a subordinate officer under such conditions, as distinguished from the mere carrying out of the expressed wishes of the commander in a particular case, is not presented in the case. This Board does not decide that question herein. It is clear, however, from the above cases, that even if such acts of a subordinate done under a delegation of authority are legally sufficient to accomplish condonation, the accused’s burden of showing the requisite knowledge and intent on the part of such officer would be no less than where it is claimed that the commander himself ordered the restoration. This Board so holds. At 183: The defense made a further motion for dismissal of Specification 1 of the Charge on the grounds of condonation based on the claim that the accused had been promoted from private to private first class [R. 21]. This motion was made at the conclusion of the prosecution’s case and was based upon the fact that Prosecution’s Exhibit No. 2 shows accused as private first class. The defense counsel stated: “. . . He was promoted. We don’t know where or when, but it was after he took off and the offense was committed. Winthrop says, on page 270: ‘A promotion will operate as a constructive pardon on such offense’.” In fact, all subsequent exhibits of the prosecution show the accused as “Pfc”, and he is so charged. However, there is no showing, nor was there any representation or contention that evidence was available to show, that the promotion was made by a commander exercising general court-martial jurisdiction, or that his mind was directed to this particular offense and was consciously willing that the accused be granted exception from the consequences of it. The law member, therefore, properly denied the motion (R. 21). nolu chan  posted on  2015-03-26   14:35:45 ET  Reply   Trace   Private Reply   #59. To: TooConservative (#56) Even so, I don't think it will happen. I don't think it will happen either - for political reasons. If Obama wanted to issue a pardon, there would be no charge, or he would have issued it before a charge. I believe a plea deal is most likely. nolu chan  posted on  2015-03-26   14:38:58 ET  Reply   Trace   Private Reply   #60. To: TooConservative, SOSO (#55) Even the libmedia won't cover up for a Bergdahl pardon. I think it would be a sort of breaking point for them. But they could cover for a commutation of sentence after a plea agreement. His time in captivity could be used to justify commuting his prison sentence with the rest of the sentence left standing. That could even be done in January 2017. nolu chan  posted on  2015-03-26   14:44:02 ET  Reply   Trace   Private Reply   #61. To: nolu chan (#58) Interesting. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   14:48:38 ET  Reply   Trace   Private Reply   #62. To: nolu chan (#60) But they could cover for a commutation of sentence after a plea agreement. His time in captivity could be used to justify commuting his prison sentence with the rest of the sentence left standing. I think the biggest objections are to the idea of paying him $350K and getting an honorable discharge when he is probably responsible for causing the deaths of 4-6 soldiers dispatched to find him. There is still the open question of whether he directly collaborated with his captors and revealed sensitive info about convoy operations and security that helped the Taliban make their attacks on American troops more deadly. I've read many times accusations from soldiers that he served with that the effectiveness of these attacks increased sharply shortly after his capture. They think he collaborated actively. But your proposed plea deal would satisfy enough people that it might be workable. And Obama is about as likely to pardon him as to promote him to the Joint Chiefs of Staff. IOW, no way. Tooconservative  posted on  2015-03-26   15:17:14 ET  Reply   Trace   Private Reply   #63. To: TooConservative, nolu chan, SOSO (#62) It can be argued by the defense that he has dininished capacity to defend himself due to the prolonged nature of his abuse - his memories being hazy, distorted or lost. So basically you have an unpunishable crime because you can't prosecute due to diminished capacity of the defendent. Pericles  posted on  2015-03-26   15:51:45 ET  Reply   Trace   Private Reply   #64. To: TooConservative, nolu chan, redleghunter (#62) And Obama is about as likely to pardon him as to promote him to the Joint Chiefs of Staff. He won't have to. It will be guilty likely by pleae sentenced to time served in captivity with no pay and a less than honorable discharge. The MSM will continue to carry Obama's water on the trade for the 5 terrorist. Case closed. потому что Бог хочет это тот путь SOSO  posted on  2015-03-26   18:17:58 ET  Reply   Trace   Private Reply   #65. To: TooConservative (#62) But your proposed plea deal would satisfy enough people that it might be workable. For clarity, please note that the deal would be unlikely to satisfy me, but I am assessing what I am observing. It would make a lot of military people unhappy. I assess it as a plea deal in motion. nolu chan  posted on  2015-03-26   19:23:28 ET  Reply   Trace   Private Reply   #66. To: nolu chan, TooConservative (#65) It would make a lot of military people unhappy. With who? потому что Бог хочет это тот путь SOSO  posted on  2015-03-26   19:24:38 ET  Reply   Trace   Private Reply   #67. To: redleghunter (#61) I just noticed that Bergdahl’s attorney mentioned constructive condonation in his 24-page press statement. From written statement of Bergdahl defense counsel, Eugene R. Fidell, of March 25, 2015. At 8-9: The report's evaluation of potential defenses trains its fire on matters that no responsible attorney would consider worth raising based on the law and the known facts. It overlooks constructive condonation, a defense that is recognized in R.C.M. 907(b)(2)(D)(iii) and is fairly raised on the facts of the case. Cognizant GCMCAs have had ample reason to believe SGT Bergdahl had deserted by the time he resumed regular duty on July 14, 2014 and certainly in the months since the report was submitted to LTG Grisoli and referred by him to you. nolu chan  posted on  2015-03-26   19:28:45 ET  Reply   Trace   Private Reply   #68. To: SOSO (#66) With who? Those from 17 to 117 who have served in uniform. nolu chan  posted on  2015-03-26   19:37:17 ET  Reply   Trace   Private Reply   #69. To: TooConservative (#62) I think the biggest objections are to the idea of paying him $350K and getting an honorable discharge when he is probably responsible for causing the deaths of 4-6 soldiers dispatched to find him. I think the biggest objections are to the idea of paying him $350K and getting an honorable discharge when he is probably responsible for causing the deaths of 4-6 soldiers dispatched to find him. The money and the discharge will be to keep the military less unhappy. There is a lack of proof about the alleged 4-6 deaths. There is a lot to consider for the prosecution. The government has spent some time and effort to make Bowe look wonderful on paper. I believe it likely that the military violated his Miranda rights early on. He was promoted and given a Second Good Conduct Award in 2014. It’s stuff that screws with a prosecution. The Washington Times reported March 25, 2015: Other reports noted that members of the military died and several more were wounded during missions to rescue Sgt. Bergdahl, when it was believed that he had wandered off from his post. Mr. Solis warned that this would be difficult to prove in court and likely would not influence the legal proceedings. “How do you prove he wouldn’t have been killed anyways?” he said. “It’s too subjective an assertion for a prosecutor to try and prove to the court.” Military.com reported March 25, 2015, "Bowe Bergdahl deserted during a time of war, and his fellow Americans lost their lives searching for him," Sgt. Matt Vierkant, who was in Bergdahl's unit, told CNN. "The question isn't whether he did it, the question is whether you can prove it," said Gary Solis, a retired colonel who served 26 years in the Marines – 15 of them as a Judge Advocate General. Solis said he expected Bergdahl's legal team would press for a plea bargain and "the government might be willing to go for a deal." "I think there's enough evidence there to convict for desertion," Solis said, referring to e-mails Bergdahl sent his parents and other evidence that Bergdahl packed up and left behind his gear before leaving his post. Should the case go to a court martial, Solis said he expected Fidell to ask for a trial by a military judge rather than risk Bergdahl going before a jury. Solis also said he was fairly certain that Bergdahl would lose his back pay, estimated at about $300,000. Military.com reported on June 4, 2014: Should a case be pursued, the most likely charge would be Absence Without Leave under Article 86 of the UCMJ, said Gary Solis, a retired Marine colonel and former Judge Advocate General. From his reading of the facts, "there's enough evidence of intent" to support a charge under Article 86, but not enough to charge him under Article 85 for desertion. Article 85 requires proof of an intent to remain away permanently, and "desertion would be just about impossible to prove" in the case of Bergdahl, Solis said. Article 86 states in part that "any member of the armed forces who, without authority absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed, shall be punished as a court-martial may direct." Upon conviction, the maximum punishment for a violation of Article 86 would be dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for one year. Both Solis and Michael Noone, a Catholic University law professor and military law specialist, said any potential case against Bergdahl could be compromised by how he has been treated since his release. Much like civilians, service members under suspicion must be told of their rights to counsel and to remain silent. "They should have told him that when he got on the helicopter," Solis said. “Gary D. Solis is an author and retired Professor of Law of the United States Military Academy, where he directed West Point’s Law of War program for six years. He was a 2007 Library of Congress scholar in residence. He is a retired U.S. Marine Corps Lieutenant Colonel, having twice served in Vietnam, where he was a company commander.” From the introductory note of “The Law of Armed Conflict,” by Gary D. Solis. And Obama is about as likely to pardon him as to promote him to the Joint Chiefs of Staff. IOW, no way. I think he won't have to commute the prison sentence if they sentence Bergdahl to 5 years and give him 5 years credit for time in captivity. nolu chan  posted on  2015-03-26   20:19:12 ET  Reply   Trace   Private Reply   #70. To: nolu chan (#68) With who? Those from 17 to 117 who have served in uniform. Not an answer to my question. You answered who will be angry not with whom they will be angry. So I ask again, with whom will they be angry? потому что Бог хочет это тот путь SOSO  posted on  2015-03-28   13:28:41 ET  Reply   Trace   Private Reply   #71. To: SOSO (#70) [nc #65] It would make a lot of military people unhappy. [SOSO #66] With who? [nc #68] Those from 17 to 117 who have served in uniform. [SOSO #70] Not an answer to my question. You answered who will be angry not with whom they will be angry. So I ask again, with whom will they be angry? Sorry, I misapprehended the question. For clarification, I said they would be unhappy, rather than angry. They are already dissatisfied with the interminable unexplained delay. They are unhappy that Bergdahl was given a hero's welcome when it was perfectly obvious that he had quit his unit (he left where he was supposed to be). Those who served will be unhappy with the decision if Bergdahl does not get either a BCD or DD, loss of all pay and benefits, and some period of confinement. For those who feel anger, deserved or undeserved, that would likely be directed at Bergdahl, the Obama administration, and the political military PTB who aided and abetted the administration. Also the military legal system in general, and more specifically the Convening Authority by whose authority the preferred charges were framed and approved. nolu chan  posted on  2015-03-28   17:23:21 ET  Reply   Trace   Private Reply   #72. To: nolu chan (#71) For those who feel anger, deserved or undeserved, that would likely be directed at Bergdahl, the Obama administration, and the political military PTB who aided and abetted the administration. Also the military legal system in general, and more specifically the Convening Authority by whose authority the preferred charges were framed and approved. In other words the military command structure. I wonder how this would play forward? потому что Бог хочет это тот путь SOSO  posted on  2015-03-28   21:31:03 ET  Reply   Trace   Private Reply   #73. To: SOSO (#72) [nc] For those who feel anger, deserved or undeserved, that would likely be directed at Bergdahl, the Obama administration, and the political military PTB who aided and abetted the administration. Also the military legal system in general, and more specifically the Convening Authority by whose authority the preferred charges were framed and approved. [SOSO] In other words the military command structure. The bulk of anger will be aimed Obama and his administration. The ones really pulling the strings on this are in the administration. The high level military command generals are political appointees. [SOSO] I wonder how this would play forward? I am curious to see the actual charge sheet and read the narrative specifications where they say Sgt. Bergdahl did such and such at a specified location, on a specified date, etc. I don't see the misbehavior before the enemy case standing unless it involves some alleged act after captivity. I don't know what act of Bergdahl forms the basis for the charge. The desertion case could have been undermined by the return to duty, promotion and good conduct awards (constructive condonation), leaving unauthorized absence. If found to be constructive condonation, the evidence for desertion does not matter. If Bergdahl walks with an Honorable or General discharge, full benefits, back pay, and no time, and the legal reason is constructive condonation, lots of folks will be very unhappy. He returned to duty at a high level HQ. This could be a case of a frustrated prosecution unable to make certain charges because the case has been undermined. We may never know. I still expect to see a plea agreement make all this go away. Both sides want to be over, done, and just go away. nolu chan  posted on  2015-03-28   22:48:07 ET  Reply   Trace   Private Reply   #74. To: nolu chan (#73) I still expect to see a plea agreement make all this go away. Both sides want to be over, done, and just go away. Yeah, f*ck justice. потому что Бог хочет это тот путь SOSO  posted on  2015-03-29   12:29:26 ET  Reply   Trace   Private Reply   #75. To: SOSO (#74) Yeah, f*ck justice. We have courts of law, not courts of justice. I believe Bergdahl committed a crime, should do the time, but if taken to trial, he possibly may walk. That would be the correct outcome in court if that is what the law indicates based on the facts. The desertion charge could fall to "constructive condonation". The misbehavior before the enemy charge could fall by failing to show Bergdahl was "before the enemy" as that term is defined in the Manual for Courts-Martial. If the charge is not based on some alleged in-captivity misconduct, I do not see how it meets the definition. Thus far, I have only heard of conjecture about in-captivity misconduct. The short absence from going walkabout to being captured would remain, but that is a relatively minor charge. Bergdahl could well opt for a bench trial rather than a jury trial, especially if the defense is based on legal technicalities. If a judge finds constructive condonation, he would be doing his duty properly in dismissing the desertion charge. It would not be the justice system that screwed up, it would be some general or one of his officers with delegated authority. A question would be whether the screwup was accidental or on purpose. There are technical questions about whether the responsible officer had convening authority and whether he/she acted with knowledge of the desertion when returning Bergdahl to duty or promoting him. If the technicalities can be shown, the charge should not have been brought, it should be thrown out at the Article 32 hearing, or result in acquittal at trial. If a judge finds any element of misbehavior before the enemy not proven, he would be doing his duty properly in dismissing the misbehavior before the enemy charge. It wouldn't be justice, but that is not the court's job. The court, and the judge, would probably take undeserved blame. It would be injustice according to law, caused accidentally or on purpose by command, possibly assisted by some military lawyer advising on just how to screw it all up while maintaining plausible deniability. nolu chan  posted on  2015-03-29   17:53:49 ET  Reply   Trace   Private Reply   #76. To: nolu chan (#75) We have courts of law, not courts of justice. Dance as you may with "technicalities" the purpose of laws and courts in a civil society is to seek the truth and administer justice. If justice cannot be served then there is something radically wrong with our laws. Now I am well aware that in just about every civil society ever what may be legal may not be moral and what may be moral may not be legal. This is because human societies are less than perfect. IMO what Bergdahl did was certainly immoral and almost certainly illegal. Clearly what Obama did in getting him back was both. So I say again, you just seem to be peachy keen with f*cking justice over in adherence to the loop holes in the law but I am not. потому что Бог хочет это тот путь SOSO  posted on  2015-03-29   22:43:04 ET  Reply   Trace   Private Reply   #77. To: SOSO (#76) Dance as you may with "technicalities" the purpose of laws and courts in a civil society is to seek the truth and administer justice. Would you have a judge ignore the law and issue a ruling contrary to law? Why have laws or bitch about the judges if someone else screws the pooch? I'm sure Bergdahl broke the law when he quit his post. If someone committed acts that effected constructive condonation, don't blame the court, and don't blame me. Blame whoever did it. Which laws do you think courts should ignore? As for seeking truth and administering justice, it is expressly not the purpose of military justice system which exists to maintain good order and discipline with the armed forces. These Article I courts are part of the Executive Branch, not part of the Judicial Branch. https://supreme.justia.com/cases/federal/us/350/11/case.html United States ex rel. Toth v. Quarles, 350 U.S. 11, 17-18 (1955) Opinion of the Court, Black J. 350 U. S. 17 We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders, and may be removed at will. Nor does the Constitution protect their salaries, as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But, from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals. Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. 350 U. S. 18 It is true that military personnel, because of their training and experience, may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury. nolu chan  posted on  2015-03-29   23:36:28 ET  Reply   Trace   Private Reply   #78. To: nolu chan (#77) Would you have a judge ignore the law and issue a ruling contrary to law? Juries do that all the time. потому что Бог хочет это тот путь SOSO  posted on  2015-03-30   0:08:27 ET  Reply   Trace   Private Reply   #79. To: nolu chan (#77) As for seeking truth and administering justice, it is expressly not the purpose of military justice system which exists to maintain good order and discipline with the armed forces You don't have the latter without the former. потому что Бог хочет это тот путь SOSO  posted on  2015-03-30   0:09:36 ET  Reply   Trace   Private Reply   #80. To: SOSO (#78) Juries do that all the time. Judges on the bench are not juries in deliberations. nolu chan  posted on  2015-03-30   2:42:16 ET  Reply   Trace   Private Reply         .       .       . Comments (81 - 86) not displayed. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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