Commentary by Kay B. Day
Military justice can be a strange process. I know because I’ve covered several trials involving what I believed to be wrongful prosecutions. Now charges are being filed by the government against another soldier who deserves to be charged.
His case, however, should raise questions about the unrelated court martial of former 1LT Clint Lorance (see photo above).
Lorance, in my opinion, was wrongly convicted. Frequent visitors to this site are aware I’ve written many articles about Lorance’s court martial on murder and other charges.
Lorance, leading a US Army patrol in a hostile zone in Afghanistan, gave orders for his men to fire on strangers approaching after refusing to stop.
Now the government in an unrelated case is disclosing charges will be filed against Bowe Bergdahl who left his post and his weapons and then was picked up by Taliban.
Among the charges Bergdahl will face are charges under Article 99. PrawfsBlog, a site written by attorneys who teach law, explained these charges against the alleged deserter:
“However, the decision to charge him under Article 99 of the UCMJ is surprising. Basically, this is the cowardice statute. You violate it if you are ‘before the enemy’ and you run away; shamefully surrender your position; cast away your arms or ammunition; act cowardly; willfully fail to ‘do his utmost to encounter, engage, capture, or destroy any enemy troops’ (as in, fight); or fail to come to the aid of your comrades when they are in contact with the enemy, among other things. This is a serious offense. Technically, the punishment could be death (although that probably would not survive constitutional scrutiny).”
There’s a full list of specifications regarding Article 99 at Cornell Law School’s Legal Information Institute. These charges raise questions relevant to Lorance’s situation which was very different than Bergdahl’s in many ways.
Lorance, having just been named leader of the platoon, had seconds to make a judgment call about the three strangers on a motorcycle who approached his men. Had he decided not to fire on those he perceived as the enemy, and his men taken injuries or worse, would Lorance have been hauled into a court martial?
Would Lorance, had he acted differently, been subject to charges he “willfully fail[ed] to ‘do his utmost to encounter, engage, capture, or destroy any enemy troops”?
In one sense, this young lieutenant with a spotless record was damned if he did and damned if he didn’t.
We now know some of the men on the motorcycle had terrorist associations. That and other relevant information wasn’t disclosed to the defense or jury panel during Lorance’s court martial.
More than 120,000 Americans have signed a petition at the White House to ask for a presidential pardon. No response has come from the president.
A full list of links to articles and background information is posted below this column.
Official sites/Clint Lorance
New Petition at The White House
New evidence & clemency information
Facebook page for Clint Lorance
Official website for Clint Lorance
Day on the Day articles
As news breaks on al Qaeda…soldier awaits president’s response
http://dayontheday.com/2015/03/02/as-news-breaks-on-al-qaeda-in-afghanistan-soldier-awaits-presidents-response/ (March 2, 2015)
Lorance not the only soldier punished for targeting enemy (February 6, 2015)
New evidence in Lorance case calls platoon mates’ claims into question (January 17, 2015)
Clemency denied: Pitfall for presidents who used same tactic as soldier (January 5, 2015)
Gateway article to 15-part series on the case of Clint Lorance