IN THE 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 ) , ) 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 , 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, , 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

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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: 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 justice for the first time. In the aftermath of the war, Congress enacted a total overhaul of the military justice system and passed the Uniform Code of Military Justice (“UCMJ”). Congress was responding to widespread concerns the previous system failed to protect citizens’ individual rights once they became military members.1 One particular reform, Article 37, sought to keep the command’s need for swift justice from swallowing an accused’s right to an

1 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). See also 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 impartial court-martial and appellate process. “One of the basic objectives of the

Uniform Code of Military Justice is to eradicate . . . misuse of command power.”2

Since 1775, Congress determined the UCMJ and its predecessors, overseeing the system as a whole, to ensure it confirmed to American values. The post-World

War II goal was to instill confidence in a system that recognized Americans have certain rights, while allowing decisions that maintain battle readiness and overall discipline. The American military justice system depends on citizen-soldiers. In large scale challenges, the U.S. absorbs the population, often without its consent.

Since the 1970s, the military depends on volunteers, but these volunteers mostly come from the citizenry. So it is necessary that volunteers, their families, and society have confidence justice will be applied fairly—without arbitrariness, command influence or injustice. Servicemembers must know that those who are guilty will be punished, those who are innocent acquitted, and that those who deserve clemency will receive it without untoward interference from superiors.

The citizenry, when volunteering or called to service, must believe in the fairness of the system, otherwise why would they enlist? Yet a pattern of behavior has developed under President Donald J. Trump that would cause a reasonable member of the public to doubt the integrity and fairness of the military justice

2 United States v. Cole, 38 C.M.R. 94, 95 (C.M.A. 1967). 4 system. While President Trump’s treatment of Appellant is the most salient example to this Court’s current interests, this pattern is unmistakable.

President Trump has repeatedly violated the norms surrounding civil-military relations. While running to be commander-in-chief, he denigrated war heroes who did not show sufficient fealty to him, such as former Senator John McCain and a

Gold Star family.3 Once elected, he undermined the political neutrality of troops, signing campaign hats and attacking political opponents by name on a military installation.4 His “request for a grand military parade in Washington was widely viewed as a political stunt.”5 In a mission he authorized, he blamed military leaders for the death of a servicemember.6 The White House also ordered a Navy destroyer

3 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. 4 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. And 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 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. 6 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 named after a political rival to have its named obscured in order to remain out of

President Trump’s sight, an action he refused to repudiate.7

These actions highlight the president’s inability to be checked by normative guardrails previously thought inviolable. But in a constitutional system, the president’s powers are not unlimited, even when he is acting as commander-in-chief.

Congress designed the UCMJ to protect our citizen-soldiers’ rights to a fair trial, while balancing military readiness. While the military could not function if servicemembers quoted the 14th Amendment when ordered to take a hill, our democracy demands that commanders cannot imprison them for failing to take that hill, before offering due process. Congress, as a coequal branch, wrote the UCMJ, and Article 37 in particular, to ensure commanders did not improperly influence that court-martial process.8

Yet President Trump does not appear to recognize himself atop of a system concerned with protecting the Constitution and its values. Rather, as he continually intervenes in military cases, he appears mostly motivated by politics and winning elections. One only need to look at the disparate treatment and criticism President

7 Lolita C. Baldor, Pentagon tells White House to stop politicizing the military, AP News, June 2, 2019, https://apnews.com/3dba0b327e8e45e5b9589db4bb735505. 8 To the extent this Court may find Article 37, UCMJ, does not apply to the president, Rule for Court-Martial 104 does. Rule for Court-Martial 104 also bars unlawful command influence. 6

Trump has given Appellant to other servicemembers accused and convicted of murder, like Chief Petty Officer Edward Gallagher, Major Matt Golsteyn, and First

Lieutenant , who have received President Trump’s praise and intervention.

In Chief Gallagher’s case, after his conviction and reduction in rank for posing with the severed head of a detainee during a reenlistment ceremony, President

Trump restored his rank and ordered the Navy to stop the peer review board that could have removed Chief Gallagher from the Navy Special Warfare Community.9

Many members of the chain of command, to include the Naval Secretary, SEAL

Commander, and chairman of the Joint Chiefs of Staff, strongly advised President

Trump against taking such action, arguing it undermined their command authority and the good order and discipline indispensable to an effective military.10 In

9 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. Also see 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. 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. Also see 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 particular, they were troubled by Chief Gallagher’s pattern of insulting the chain of command in unauthorized television appearances while on active duty.11

Nonetheless, President Trump intervened, ordered the proceedings to halt, and through his Secretary of Defense, fired the Naval Secretary. Then President Trump trumpeted one of Chief Gallagher’s unauthorized television appearances to his millions of twitter followers.12

While President Trump has the power to pardon individuals convicted of military crimes—he has acted arbitrarily, contrary to precedent and without regard to procedure, consequences, or equal application of the law when deciding when to intervene in a case. He has not set up a clearly identifiable pattern for the treatment of those accused of committing violations of UCMJ or international law, and his interests in particular cases reflect political interests, not legal or constitutional ones.

Reporting, and President Trump’s twitter feed, suggest his actions with all three

11 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. 12 President Donald J. Trump (@realDonaldTrump), Twitter (November 24, 2019, 7:11 AM), https://twitter.com/realDonaldTrump/status/1198574811678683137. Reports have also emerged that the president wants to eventually campaign for reelection with Chief Gallagher, Major Golsteyn, and Lieutenant Lorance by his side. 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 servicemembers’ cases, were spurred, in part, by private and public lobbying from a television personality on , and not through the Office of the Pardon

Attorney in the Department of Justice.13

President Trump is not alone in receiving criticism for use of the pardon power in regards to military crimes. President Lincoln was accused by some wartime leaders of undermining good order and discipline for commuting the death sentence of many deserters and others guilty of malfeasance.14 But Lincoln had a process and he would listen to advice from generals and secretaries. Once a week, without fail, was court-martial review day, and Lincoln would go through hours of them. Lincoln very carefully intervened to let people off, or to insist on the prosecution, always with an eye to support the war.15 Lincoln’s interventions attempted to maintain favorable public opinion for the war effort, even if in individual cases some military leaders were frustrated by the effect on discipline.

13 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. Also see Richard Spencer, I was fired as Navy secretary. Here’s what I’ve learned because of it, Washington Post, November 27, 2019. 14 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&ty pe=pdf. 15 “P.S. Ruckman, Jr., David Kincaid, The Forgotten Side of Lincoln's Clemency Policy, Illinois Political Science Association, University of Illinois-Chicago, 1994. 9

President Trump’s pattern of favoring convicted murderers and those who take photographs with corpses, while requesting punishment to Appellant, a deserter, not only inverts Lincoln’s clemency policy but it perverts any semblance of a rational decision-making process. The use of TV personalities as trusted advisors highlights this scattershot approach. Where President Trump abuses his power, though, is in the disregard for the UCMJ and the constitutional protection of individual rights.

President Trump, as commander-in-chief of the armed forces, continues his unabated negative commentary on Appellant’s active case to this day. Not less than one month ago, President Trump explicitly highlighted his military clemency policy where certain classes of crimes are treated more favorably when he tweeted: “Thank you

Pete [Fox News Host]. Our great warfighters must be allowed to fight. I would not have done this for Sgt. Bergdahl or Chelsea Manning!”16

Conclusion

Ignoring traditional decision-making processes to intervene in individual military cases, politicizing the military for personal gain, disparaging war heroes,

16 President Donald J. Trump (@realDonaldTrump), Twitter, (November 17, 2019, 8:43 AM), https://mobile.twitter.com/realDonaldTrump/status/ 1196061212833923072. Trump’s tweet to “Pete” was in response to the Fox News’ Commentator’s celebratory tweet for Chief Gallagher, Major Golsteyn, and Lieutenant Lorance’s clemency, which can be found embedded underneath the president’s tweet, Pete Hegseth (@PeteHegseth), Twitter, (November 15, 2019, 7:05 PM), https://mobile.twitter.com/PeteHegseth/status/1195493031715184645. 10 and showing a general lack of regard for constitutional values, President Trump is acting without precedent in his relations with the military. Given President Trump’s removal of the Naval Secretary during the middle of the public disagreement over how to handle Chief Gallagher’s peer review board, there is no mistaking the potential consequences for subordinates challenging President Trump’s desired outcomes in individual cases.

President Trump has repeatedly made disparaging comments against

Appellant. A fair inference is there was professional risk for any previous convening authority or military member who provided Appellant leniency. It is hard to imagine, given all of this context, how the public could feel confident the military justice system acted impartially in each phase of Appellant’s case: the merits, sentencing, clemency, and appeals; or how the public could feel confident Appellant’s case played out without unlawful influence from the commander-in-chief.

JOSHUA G. GRUBAUGH Attorney for Amici Curiae Grubaugh Law, LLC 157 Church Street, 19th Floor New Haven, CT 06510 203.633.2700 [email protected] USCAAF Bar No. 36576

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CERTIFICATE OF COMPLIANCE

This brief complies with the page limitations of Rule 24(b) and Rule 26(f).

This brief complies with the typeface and typestyle requirements of Rule 37.

Joshua Grubaugh

CERTIFICATE OF FILING AND SERVICE

I certify that I served and filed the foregoing Amici Curiae Brief on December

12, 2019, by emailing copies thereof to the Clerk of Court, the Appellant, the

Government Appellate Division, and the other amici curiae.

Joshua Grubaugh

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