Bergdahl to face court-martial, but not for treason

As described in this CNN story, Army Sgt. Bowe Bergdahl will now face a court-martial on two charges: “desertion with intent to shirk important or hazardous duty,” and “misbehavior before the enemy.”  Please note that Bergdahl has not been charged with treason.  You may see news reports or commentary out there saying that Bergdahl faces treason charges.  That is false.

I am not a military law expert, but my understanding is that treason charges cannot be brought in a court-martial.  Treason is an offense that probably can only be prosecuted in the civilian judicial system.  The Uniform Code of Military Justice certainly contains offenses that are very similar to treason (such as Article 104, “aiding the enemy”).  But treason is defined only by Article III of the Constitution and 18 U.S.C. 2381 – indeed, treason’s place in Article III is arguably textual evidence that the Framers of the Constitution intended it to apply only in civilian, Article III courts.  And it is not among the offenses listed in subchapter X of the UCMJ, nor is it cognizable under the UCMJ’s Article 134 (because treason is a capital offense).

If others have better information about this, let me know.  My work on treason would certainly benefit.  But for now, even if Bergdahl’s conduct would constitute treason (and that is debatable), I believe the best authority out there says that treason is not cognizable in a court-martial.



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