In February, Sgt. Bowe Bergdahl faces a general court-martial based on two charges: “desertion with intent to shirk important or hazardous duty” and “misbehavior before the enemy by endangering the safety of a command, unit or place.” His attorney has filed a petition seeking a preemptive presidential pardon.
Presidential pardons are generally granted after a person has been tried, convicted and served all or some of the sentence. The pardon is generally a means of striking a previous conviction from the record and restoring full civil liberties to an individual, including the right to vote, own firearms and serve on a jury. In 2015, President Barack Obama received 294 petitions for pardon. He granted 12.
In rare instances, pardons are offered before a person has been charged with a crime or brought to trial. Most pre-emptive pardons have been issued to large groups of people, such as all deserters in the Revolutionary War, all soldiers serving the Confederacy in the Civil War and draft dodgers from the Vietnam War. But there have also been a relatively few instances in which individuals have been given pre-emptive pardons, including former President Richard Nixon and former Defense Secretary Caspar Weinberger.
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Bergdahl’s scheduled general court-martial may be the highest-profile military judicial action currently pending, but it is far from the only one. In 2011, the most recent year for which we could find statistical data, there were 1,179 general courts-martial in the five service branches, with 1,078 convictions.
The U.S. military justice system is established pursuant to the U.S. Constitution and exercises jurisdiction over criminal cases committed by military personnel in violation of the Uniform Code of Military Justice. It is generally separate and distinct from the civilian judicial system. However, it does contain a system for appealing cases through the military court system and, following such appeals, a military defendant may, in limited circumstances, appeal to the U.S. Supreme Court.
We see little reason for treating Bergdahl’s case any differently than other general court-martial cases. There are procedures that have been and are followed in thousands of cases with the assumption that the system works well without external intervention, such as presidential pardons.
Certainly, there is the highly unusual fact that President-elect Donald Trump, the future commander in chief, has publicly declared Bergdahl guilty. As a result, he may end up playing on outsized role in either the prosecution’s or defendant’s legal strategies
It was also highly irregular for the chairman of the Senate Armed Services Committee, Sen. John McCain, to threaten to hold a Senate hearing if Bergdahl is not found guilty. In response to McCain’s statements, Bergdahl’s attorney has filed appeals with both the U.S. Army Court of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces, seeking to have the charges against Bergdahl dismissed.
Just as with the civilian courts, the military courts have procedures and processes to deal with these various issues. We believe that the justice system needs to be given the opportunity to work in this case without external influences from any quarter, including Obama’s legal advisers reviewing the pardon request. If it can be shown that the system can work as it was originally designed to work in dispensing justice, then our entire country will be the better for it.
This is a high-profile case that is continuing to receive great scrutiny from the public, the media and the military. Given all of this attention, it seems unlikely that the military is going to want to risk throwing open the military justice system to broad public criticism or even ridicule.
Bergdahl is one of hundreds of military personnel facing a general court-martial. His petition for a presidential pardon is one of hundreds of such petitions under consideration, few, if any, of which are seeking pre-emptive pardons. To suggest that his case is more deserving of special consideration than any other case seems to be a stretch. We have a system that seems to work for most other people without the need for preemptive pardons. Let’s allow the system do what it is designed to do.
Martin Peterson and William Myers are members of the Idaho Statesman Editorial Board.