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In the United States Court of Appeals for the Armed Forces IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, ) BRIEF OF EXPERTS IN ) CIVIL AND MILITARY Appellee ) RELATIONS AS AMICI CURIAE v. ) IN SUPPORT OF APPELLANT ) Sergeant (E-5) ) Crim. App. Dkt. No. 20170582 ROBERT B. BERGDAHL ) United States Army, ) USCA Dkt. No. 19-0406/AR Appellant ) TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: Richard H. Kohn, and Jonathan Lurie, two professors of American History, and military and civil relations, pursuant to Rule 26(a)(3) of this Court, respectfully submit this brief as amici curiae in support of Appellant, Sergeant Robert Bergdahl. INDEX OF BRIEF STATEMENT OF INTEREST .................................................................................. 1 ARGUMENT ............................................................................................................. 3 CONCLUSION ........................................................................................................ 10 CERTIFICATE OF COMPLIANCE WITH RULE 24(d) ...................................... 12 CERTIFICATE OF FILING AND SERVICE ........................................................ 12 TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES Cases United States v. Cole, 38 C.M.R. 94, 95 (C.M.A. 1967) ........................................... 4 Uniform Code of Military Justice, 10 U.S.C. § 801 et seq.: Article 37 ................................................................................................................ 3, 6 Rules and Regulations Rule for Court-Martial 104 ........................................................................................ 6 Other Authorities Lolita C. Baldor, Pentagon tells White House to stop politicizing the military, AP News, June 2, 2019, https://apnews.com/3dba0b327e8e45e5b9589db4bb735505 ............................... 6 Eric Bradner, Did Trump go too far?, CNN, August 1, 2016, https://www.cnn.com/2016/07/31/ politics/donald-trump-khizr-khan-family- controversy/index.html ......................................................................................... 5 Michael Scott Bryant, American Military Justice From the Revolution to the UCMJ: The Hard Journey From Command Authority to Due Process, 4 Creighton Int'l & Comp. L.J. 1 (2013) .................................................................. 3 David Choi, People have a lot to say about Trump signing MAGA hats for US troops in Iraq, Business Insider, December 27, 2018, https://www.businessinsider.com/trump-maga-hats-signing-iraq-germany-us- troops-2018-12 ...................................................................................................... 5 David Choi and Sarah Gray, Trump wants convicted or charged war criminals on the campaign trail with him, report says, Business Insider, Nov 26, 2019, https://www.businessinsider.com/trump-wants-pardoned-convicted-war- criminal-on-campaign-trail-report-2019-11.......................................................... 8 Andrew Dyer, Top Navy officer upholds punishment of Navy SEAL Eddie Gallagher, San Diego Tribune, October 29, 2019, https://www.sandiegouniontribune.com/news/military/story/2019-10-29/navy- chief-upholds-jury-sentence-in-court-martial-of-navy-seal-eddie-gallagher ....... 7 ii The Judge Advocate General’s School, U.S. Army, The Background of the Uniform Code of Military Justice, 1959, https://www.loc.gov/rr/frd/Military_Law/pdf/background-UCMJ.pdf ............... 3 Pete Hegseth (@PeteHegseth), Twitter, (November 15, 2019, 7:05 PM), https://mobile.twitter.com/PeteHegseth/status/1195493031715184645 ............ 10 Dave Philipps, Peter Baker, Maggie Haberman and Helene Cooper, Trump’s Intervention in SEALs Case Tests Pentagon’s Tolerance, New York Times, Nov. 30, 2019, https://www. nytimes.com/2019/11/30/us/politics/trump-seals- eddie-gallagher.html ......................................................................................... 7-9 P.S. Ruckman, Jr., David Kincaid, The Forgotten Side of Lincoln's Clemency Policy, Illinois Political Science Association, University of Illinois-Chicago, 1994, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.455.4380& rep=rep1&type=pdf ............................................................................................... 9 Leo Shane III, Trump blames generals for Navy SEAL's death in Yemen raid, Military Times, February 28, 2017, https://www.militarytimes.com/news/pentagon-congress/2017/03/01/trump- blames-generals-for-navy-seal-s-death-in-yemen-raid/ ........................................ 5 Paul Sonne and Phillip Rucker, Trump's visit to troops prompts concerns about politicization of military, The Washington Post, December 27, 2018, https://www.stripes.com/news/us/trump-s-visit-to-troops-prompts-concerns- about-politicization-of-military-1.562344 ............................................................ 5 Richard Spencer, I was fired as Navy secretary. Here’s what I’ve learned because of it, Washington Post, November 27, 2019, https://www.washingtonpost.com/opinions/richard-spencer-i-was-fired-as-navy- secretary-heres-what-ive-learned-because-of-it/2019/11/27/9c2e58bc-1092- 11ea-bf62-eadd5d11f559_story.html ................................................................ 7, 9 Donald Trump falls out with the military establishment he once wooed, The Economist, November 28, 2019, https://www.economist.com/united- states/2019/11/28/donald-trump-falls-out-with-the-military-establishment-he- once-wooed ........................................................................................................... 5 President Donald J. Trump (@realDonaldTrump), Twitter, (November 17, 2019, 8:43 AM), https://mobile.twitter.com/realDonaldTrump/status/ iii 1196061212833923072 ....................................................................................... 10 President Donald J. Trump (@realDonaldTrump), Twitter (November 24, 2019, 7:11 AM), https://twitter.com/realDonaldTrump/status/1198574811678683137 ............................................................................................................................... 8 iv STATEMENT OF INTEREST Both Richard H. Kohn and Jonathan Lurie are distinguished scholars in their field. Kohn and Lurie seek to provide historical context for the benefit of the Court. Kohn and Lurie argue President Trump’s actions in Appellant’s case are part of an unprecedented break in civil and military relations, where President Trump has tossed aside traditional decision-making processes and inserted himself in individual cases for overtly political reasons. Kohn is Professor Emeritus of History and Peace, War, and Defense at the University of North Carolina at Chapel Hill. He has been a Harold K. Johnson visiting professor of military history at the U.S. Army Military History Institute and Army War College, Omar N. Bradley professor of leadership at Dickinson College and the Army War College, and an adjunct professor at the National War College. From 1981 to 1991 he was Chief of Air Force History and Chief Historian for the United States Air Force, rising from SES 1 to 4, on the air staff in Washington, heading the Office of Air Force History, overseeing the USAF Historical Research Agency, and serving as the functional manager of the worldwide command history program. Educated at Harvard (A.B. magna cum laude, 1962) and the University of Wisconsin (M.S. 1964, Ph.D. 1968), he is the author or editor or co-author or co- editor of some ten volumes in American military history and civil-military relations, 1 including the Pulitzer Prize finalist Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783-1802 (1975). His other books include the edited volume, The United States Military under the Constitution of the United States, 1789-1989 (1991), and an edited volume with Peter D. Feaver, Soldiers and Civilians: The Civil-Military Gap and American National Security (2001). Jonathan Lurie is Professor Emeritus at Rutgers University-Newark. Among his prior positions, he is former Chair, History Department, (1980-83, and 1984-87), Historian and archivist to this Court, (1987-2001), and Visiting Professor of Law, West Point (1994-95). Educated at Harvard College (A.B. cum laude, 1961) Harvard University (M.A.T, Social Sciences, 1962), and the University of Wisconsin (Ph.D. 1970), he is the author of several books, including Arming Military Justice--Origins of the United States Court of Military Appeals, 1775-1950. Volume I of the Official History of this Court, (Princeton: Princeton University Press, l992); Pursuing Military Justice--History of the United States Court of Appeals for the Armed Forces, 1950-1980, Volume II of the official History of this Court, (Princeton University Press, 1998); Military Justice in America, (University Press of Kansas, 2001); and The Supreme Court and Military Justice, (Sage Publishers, Congressional Quarterly Press, 2013). 2 He has also written numerous articles and relevant book chapters, among those, Andrew Jackson, Martial Law, Civilian Control of the Military, and American Politics; an Intriguing Amalgam, 126 Mil. L. Rev. 133 (l990); Presidential Preferences and Aspiring Appointees: Selections to the United States Court of Military Appeals, l951-1968, 29 Wake Forest L. Rev. 521 (l994); and Military Justice Fifty Years After Nuremberg: Some Reflections on Appearance v. Reality, 149 Mil. L. Rev. 178 (1996). Argument The large-scale conscription of millions during World War II saw a generation of citizen-soldiers exposed to military
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