by Mitch Kokai
Senior Political Analyst, John Locke Foundation
[M]ilitary justice is a unilateral executive-branch system. Even the appellate courts, including the U.S. Court of Appeals for the Armed Forces, lack structural independence. No matter how scrupulously the military courts conduct the proceedings, there can still be a perception that a conviction was rigged. Furthermore, while the U.S. Supreme Court — the Constitution’s ultimate, independent judicial authority — has the power to review military cases, its jurisdiction is discretionary. It need not review any military cases and only rarely accepts such appeals.
You might figure this means that a soldier targeted by presidential commentary is sure to be railroaded. In reality, the tendency runs in the opposite direction. The military takes great pride in its first-rate justice system. In word and deed, that system communicates to those who enlist in our armed forces that an American soldier’s rights will be zealously safeguarded. Military courts bend over backwards to refute any notions that their proceedings have been infected by improper influence from the upper ranks. …
… “So what?” you say. After all, you figure Bergdahl probably is a dirty, rotten traitor; plus, there is no shortage of Americans besides Trump who would see a firing squad as justice in his case. But the thing is, you and I and the rest of the peanut gallery are not the commander in chief. We are not the official to whom the military officers processing Bergdahl’s case ultimately answer. We do not get to weigh in on matters such as military promotions, assignments, and career track. Those officers have no reason to care what we think, but they have a great deal of reason to care what the president thinks.