The Political Thicket

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Have you ever heard of Felix Frankfurter? Although you might guess that he is the inventor of the hot dog, he’s not. He’s actually a famous United States Supreme Court Justice that served from the 1930s to the 1960s. One of the things he is best known for is warning the court to stay out of the “political thicket.” Basically, he didn’t think the court get involved with cases that decide political questions because they are messy, and they end up making everyone mad.

This is as good advice today as when it was given, and it applies to the military justice system just as well as the civilian courts. When a court martial gets politicized, it rarely turns out well.

Having been involved with several high profile courts martial in the past, I cringe whenever the Bowe Bergdahl case makes the news, but at the same time I can’t seem to look away. Perhaps there was no way for this case to fly under the radar, and remain non-political, but it is clear that it is now stuck in Frankfurter’s warned-of thicket.

Last fall, when it was unclear if Bergdahl would face punishment if found guilty of the crimes he is charged with, U.S. Senator John McCain said, “If it comes out that Bergdahl has no punishment, we’re going to have a hearing in the Senate Armed Services Committee… I am not prejudging, OK, but it is well known that in the searches for Bergdahl, after – we know now – he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter.”

Bergdahl’s legal team has now filed a motion asking that the charges against him be dismissed, arguing McCain’s comments violate his due process rights. If the charges are not dropped, they argue he should not face any punishment.

McCain’s comments further politicize this already controversial case, but they are especially concerning to Bergdahl’s defense team because McCain is currently the Chairman of the Senate Armed Services Committee. That committee has the power to approve or slow high level military appointments, so McCain’s comments could be seen as a threat that he will politically punish military leadership if the Bergdahl case doesn’t turn out the way he thinks it should (with Bergdahl being punished).

Not every case is as politicized as the Bergdahl case has been, but all courts martial have the potential to become politicized because of the nature of government oversight over the military. This is just another reason why hiring a defense attorney with military law experience to represent you if you are court martialed is so important. No matter how good a civilian criminal defense attorney is, they are not going to have the experience with the military system that is necessary to deal with the unique issues that arise in courts martial.


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