Serial Season 2: Military Law and the Court of Public Opinion
Right in time for the study season, the ultimate exam distraction made its comeback.
Borrowing a page from Beyonce’s book, the popular podcast Serial kicked off its second season with an unannounced first episode on December 10th. The new season chases a new story, this time exploring the case of Bowe Bergdahl, an American soldier who was held captive by the Taliban for five years after walking off his post in Afghanistan in 2009.
Bergdahl was released in May 2014 in a dramatic prisoner exchange for five Taliban members. At first, his return was celebrated. President Obama was joined in the Rose Garden by Bergdahl’s relieved parents to announce the good news.
But not long after, questions about Bergdahl rose to the surface. Wasn’t Bergdahl a deserter, after all? Hadn’t he left his base voluntarily, and to the detriment of his fellow troops? Why had Congress been left in the dark about the exchange for Guantanamo prisoners that led to his return?
Now facing court martial on charges of desertion and misbehavior before the enemy, Bergdahl’s silence is broken in Serial.
The show interweaves hours of phone conversations between Bergdahl and Mark Boal, the writer and producer of The Hurt Locker and Zero Dark Thirty, and commentary by investigative journalist Sarah Koenig, who in season one of the show doggedly pursued the truth of what really happened in a 1990s Baltimore murder case.
This time around, the show is not about whodunit, but why? The basic facts of the Bergdahl case aren’t in dispute: he abandoned his U.S. Army outpost in Paktika Province sometime on the night of June 30, 2009, and was apprehended by Taliban forces not long after. Listeners are left grappling with Bergdahl’s motive for leaving in the first place, the fallout from his actions, and how justice ought to be served.
The Bergdahl case raises a host of questions, both moral and legal. Understanding the military legal landscape adds yet another layer of complexity. Two members of the Queen’s Law community with significant military experience sat down with me to help unravel some of the issues.
Chris Waters is a PhD candidate at Queen’s Law who recently retired from the Canadian Forces after 40 years of service, including years spent as a military lawyer for the Office of the Judge Advocate General (JAG). He has participated in numerous international operations, including two deployments in Afghanistan as a senior legal advisor.
The first legal issue Waters identifies, specifically in the military context, is absenteeism. In most employment settings not showing up for work might be an annoyance to managers, but it certainly isn’t a criminal offence. Within a military organization, however, things are very different.
“Absenteeism may be an inconvenience in a civilian workplace, but it is deleterious to the operations of an armed force and is consequently punished severely,” says Waters.
Waters explains the types of absenteeism in a military setting: being absent without leave (“AWOL”), and desertion.
“Desertion is the angry big brother of AWOL,” explains Waters. “What differentiates AWOL from desertion is intent. If a soldier is AWOL, that person is presumed to be returning to work – they just missed the bus or slept in. Desertion, on the other hand, presumes that the military member is not intending to return to service.”
Desertion is rare, but is taken very seriously in every military force. It can still be a capital offence in countries that retain the death penalty. Until 1998, Canada’s National Defence Act still provided for the death penalty for deserters– long after it was removed from the Criminal Code. However, the last time a Canadian soldier was executed for desertion was in 1945.
The reason that this kind of conduct is taken so seriously is because of the effect it has on unit morale and cohesion. The success of military operations depends on individuals carrying out the respective duties when ordered, and absenteeism can severely undermine a task or mission.
“Desertion is the angry big brother of AWOL”
Peter Briffett is a Queen’s Law student and Captain in the Canadian Forces. He completed a six-month tour in Afghanistan around the same time that Bergdahl was there, and speaks to many of the same concerns as Waters. While Briffett’s unit never interacted with Bergdahl’s, he can appreciate the ripple affects that would result from this kind of a disappearance.
“Obviously there’s the danger component,” says Briffett. “It puts your unit at such a level of risk.”
Following the disappearance, Bergdahl’s own unit and many others in the region became exclusively focused on getting him back. This changed the raison d’être of their tour, paralyzing other information-gathering functions.
“His unit is assigned a specific mission when they are in Afghanistan,” explains Briffett. “When he goes missing, it stops dead. The entire mission becomes to look for him.”
It’s been reported that six U.S. soldiers lost their lives in the search for Bergdahl. Those lives might have been spared, if not for his actions. This is a sticking point for Briffett.
“You hear the cliché in war movies ‘the most important thing is the guy fighting beside you.’ It’s a bit trite but there’s a lot of truth in it,” says Briffett. “To do that, he would have known that he was going to end up putting people at risk. He had to know somewhere in the back of his mind that he was harming his buddies.”
The million-dollar question is why Bergdahl left.
Bergdahl claims that in part, he walked off the base because he had concerns with the leadership of his unit. He knew if he disappeared, higher headquarters would be notified, shining a spotlight on his platoon.
What doesn’t sit so well is that Bergdahl doesn’t appear to have exhausted other options before taking this extreme measure.
“It’s been reported that six U.S. soldiers lost their lives in the search for Bergdahl. Those lives might have been spared, if not for his actions.”
“Bergdahl had other options than leaving his comrades in the lurch,” says Waters. “There are voice mechanisms for service members who have a specific complaint about their conditions of service, or have suffered from harassment or abuse of authority.”
Briffett outlines some specific avenues available to members of the Canadian Forces. First, he explains, many soldiers confide in members of the Chaplaincy Branch, comprised of multi-denominational people of faith. Branch personnel are commissioned officers working outside the chain of command. They play a role akin to that of a social worker, and have the ears of higher echelons of command.
Second, soldiers can raise concerns up through the chain of command. Senior enlisted personnel are expected to be the voice of the troops to the officers above them. There are also impromptu opportunities to air grievances. It’s not uncommon for someone as senior as a Company Commander or a Lieutenant Colonel to hold a town hall-style meeting where troops are invited to speak their minds without the presence of their officers.
It’s not clear what specific options were available to Bergdahl and his fellow troops, but based on what listeners have heard so far, it doesn’t seem he canvassed all the possibilities.
Canadian court martial
Bergdahl’s court martial is founded in the military justice system of the United States, specifically the Uniform Code of Military Justice. He is charged with desertion and misbehaviour before the enemy, and faces the possibility of life in prison.
What might happen to a Canadian soldier in similar circumstances?
There are, of course, systemic differences between U.S. and Canadian military law. Certain fundamental principles however remain the same. Just like in the U.S., a member of the Canadian Forces is subject to military law by virtue of being in the military.
Briffett explains that in Canada, most military crimes are tried by a serviceperson’s commanding officer in the form of a summary trial. More minor infractions such as being AWOL or fighting and quarrelling would be decided by summary trial and punished accordingly. Some enumerated offences are electable, in that they can go to summary trial or court martial. Only certain serious offences laid out in the Code of Services Discipline of the National Defence Act proceed directly to court martial. Those cases are heard by appointed, military specific judges who travel from base to base.
Bergdahl’s desertion charge finds its Canadian equivalent in s. 88 of the National Defence Act, “Desertion.” According to the provision, a deserter is someone who “being on or having been warned for active service, duty during an emergency or other important service, is absent without authority with the intention of avoiding that service.” As in the U.S., a conviction is punishable by lifetime imprisonment.
The Act’s Code of Service Discipline doesn’t contain an identical provision to the U.S. charge of misbehavior before the enemy. Waters thinks the closest is probably s.74 of the Act, “Offences by Any Person in Presence of Enemy.” The section outlines various actions, such as assisting the enemy or doing anything to imperil the success of forces, which carry the possibility of lifetime imprisonment upon conviction.
While it’s far too early to predict the outcome of Bergdahl’s court martial, we can quench our thirst for better understanding the Bergdahl enigma by tuning in bi-weekly and hanging once again on Koenig’s every word.
All episodes of Serial are available free online at https://serialpodcast.org
Jess Spindler (3L) is a staff writer with Juris Diction.