“Blessed are the merciful for they shall obtain mercy.” Matthew 5:4-10.
“Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel ...” Federalist Paper 74, “The Military and Pardoning Powers of the President,” Alexander Hamilton.
“This man is pardoned and hereby ordered to be discharged from the service.” Abraham Lincoln, handwritten note granting a presidential pardon, April 14, 1865.
The power of the president to pardon is contained in Article II, Section II of the U.S. Constitution. As pointed out by Alexander Hamilton in Federalist Paper 74, it is intentionally broad. The president “shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.”
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A pardon may be issued prior to a conviction or after a conviction, and it extends to the right to grant general amnesty as Lincoln proposed in 1863 to those ordinary citizens who fought for the South, if they would take an oath of loyalty to the United States.
Anyone can have an opinion as to whether a pardon should be granted. Only the president may grant it. It may be as simple as Lincoln’s 1865 note, which is one of many such pardons he granted soldiers during the Civil War. Lincoln’s secretary of war, Edwin Stanton, is said to have complained that Lincoln had a bad habit of pardoning soldiers who should be shot.
Let’s examine some basic facts of the Sgt. Bowe Bergdahl case.
Bergdahl, born in Sun Valley in 1986, entered the U.S. Army in 2008. He was deployed to Afghanistan in May 2009 and was captured on June 30, 2009. The Taliban claimed credit for his capture.
On May 31, 2014, President Barack Obama announced that Bergdahl had been released after nearly five years in captivity. On March 3, 2015, Bergdahl was charged with one count of desertion with the intent to shirk important or hazardous duty and one count of misbehavior before the enemy by endangering the safety of a command, unit or place. On March 25, 2015, a Bergdahl letter was released describing his torture during captivity. He spent months chained to a bed and on all fours or locked in a cage, and was subject to long periods of isolation.
On Sept. 18, 2015, Gen. Kenneth Dahl, the Army officer who led the investigation into Bergdahl’s actions, testified at a preliminary hearing that jail time would be “inappropriate” for Bergdahl, stating there was no evidence to corroborate reports that Bergdahl was sympathetic to the Taliban, but that he was seeking to call attention to what he considered (wrongly, it appears) poor leadership of his unit.
On Dec. 14, 2015, Gen. Robert Abrams, commander of the U.S. Army Forces Command, ordered Bergdahl’s case to a general court-martial, overriding the recommendation of the preliminary hearing, which recommended a special court-martial and no jail time.
On March 17, an Army sanity board evaluation found that Bergdahl had “schizotypal personality disorder” at the time of the alleged criminal conduct and now had post-traumatic stress disorder. This was the Army’s own finding, not a report from a defense expert.
Recent reports have also indicated that there was no direct loss of life by military personnel in searching for Bergdahl, as had been earlier alleged. Clearly, however, financial and personnel resources were expended in those efforts, and it cannot be clearly shown that some loss of life did not occur in so-called “cordon and search” operations where areas were searched generally for possible prisoners or captives.
It seems to us that it bears all the marks of a case that falls squarely within the bounds of the very reasons the Founding Fathers placed the pardoning powers in the hands of one person — the president of the United States.
Clearly, Bergdahl violated military law when he left his post. However, following his preliminary hearing, the finding of that process was that Bergdahl’s charges should be handled as a lesser offense.
It was the interjection of the commanding general that resulted in the reversal of the finding. He had a right to use his power, as the president has the power to overrule that action via a pardon. We do, after all, have a long, proud history of civilian control of the military.
As Alexander Hamilton states in Federalist, No. 74, “... As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law ....”
Bergdahl’s case is just the type the Founding Fathers would have found appropriate for presidential pardon. So do we.
Sophie Sestero and Mike Wetherell are members of the Idaho Statesman’s Editorial Board.