Eight Important Facts You Need to Know for Sgt. Bowe Bergdahl’s Article 32 Hearing Prior to a Court-Martial

Cully Stimson /

The Army will hold an Article 32 hearing for Sgt. Bowe Bergdahl this week at Joint Base San Antonio-Fort Sam Houston. The hearing, which may take a few days, is standard for all military court-martials where felony charges have been preferred against the accused, unless the accused chooses to waive the hearing.

Sgt. Bergdahl has not waived his right to an Article 32, and therefore it will take place this week in a military courtroom in Texas.

As I have written before, the military justice system is unique, and for good reason. It exists to enforce good order and discipline in the armed forces and has unique aspects separate and distinct from the also-unique civilian criminal justice system.

The Army had five options on what to do with Sgt. Bergdahl. They choose the most serious option: to court-martial him.

No doubt, given the intense amount of press coverage about the Bergdahl case and the swap of the Taliban Five, the Article 32 hearing will be covered by the press very closely.

Given the unique nature of the military justice system and the strong emotions surrounding this case, it is important to understand the basics of the military justice system, the role of the Article 32, and potential next steps.

1. Like all military personnel charged with a crime, Sgt. Bergdahl is presumed under the law to be innocent unless and until he is proven guilty by legal and competent evidence (at a court-martial) beyond a reasonable doubt.

2. The media almost always describes Article 32 proceedings incorrectly – at a disservice to the public. An Article 32 proceeding is not like a civilian grand jury proceeding, but rather it is akin to a preliminary hearing in a civilian criminal court.

3. All military accused are entitled to a military defense counsel at no cost. That military defense counsel is a member of the Judge Advocate General’s (JAG) Corps. Furthermore, all military accused have the right to hire a civilian defense attorney at no expense to the government. Sgt. Bergdahl has a military JAG attorney representing him, and has hired an outstanding civilian criminal defense attorney, Eugene Fidell.

4. The purpose of the Article 32 is straightforward: to determine whether there is probable cause to believe that the accused committed the crimes preferred against him.

5. At the Article 32, the government is represented by a JAG prosecutor, called a Trial Counsel. The accused is represented by his counsel at the Article 32.

6. At the Article 32, the Trial Counsel may present evidence in the form of live witnesses, documentary evidence, or other relevant evidence as to each and every element of the offense to which the accused is charged with. The defense counsel may cross-examine all witnesses and the IO may note any objections to the evidence for the record.

After the government has presented its evidence, the defense may, but is not required to, present evidence that would tend to raise doubts as to the sufficiency of the evidence and call into question whether probable cause has been established.

The defense is prohibited from using the Article 32 hearing as a discovery fishing expedition.

7. A military judge does not preside over the Article 32. Rather, the Convening Authority (the entity that owns the accused) appoints a neutral Investigating Officer (IO) to preside over the Article 32. That JAG attorney conducts the Article 32 much like a military judge would preside over a court-martial or preliminary hearing, except that any objections by the parties are simply noted for the written record.

At the conclusion the Article 32, the Investigating Officer then retires to write a timely written recommendation to the Convening Authority as to substance of the testimony, whether or not the accused was mentally competent for the offense, whether the charges are in proper form, whether probable cause exists with respect to any of the charges, and a recommendation as to what charges – if any – should be referred against the accused by the Convening Authority.

8. Once the Convening Authority receives the IO’s written recommendation, and any materials the defense submits, it is required by law to review the facts and evidence, and decide whether or not to refer (file) charges against the accused. The Convening Authority has several options:

It will be weeks, or months before we know what the Convening Authority will do after he receives the IO’s Article 32 report.

No related posts.