Could Desertion in Afghanistan Be a Capital Offense?

As the debate over last weekend’s prisoner exchange continues, one of the darker memes to emerge is the suggestion that Sergeant Bergdahl could/should be court-martialed for desertion under Article 85 of the UCMJ, 10 U.S.C. § 885. And Article 85 makes desertion (or “attempt to desert”) a capital offense “if the offense is committed in time of war.” Although this is almost certainly an academic question as applied to Sergeant Bergdahl (who won’t be prosecuted), it raises the more interesting (and age-old) question of whether conflicts like the one Congress authorized in the September 2001 Authorization for the Use of Military Force (AUMF) satisfy the “in time of war” language of Article 85.

As has been well-documented in the past, military courts are all over the place when it comes to whether a statutory “in time of war” requirement (of which there are many) can only be satisfied by a formal declaration of war, as opposed to a more limited use-of-force authorization. In this context, though, I suspect the constitutional avoidance canon would compel the conclusion that “in time of war,” for Article 85 purposes, requires a formal declaration. For starters, consider the Supreme Court’s 2008 decision in Kennedy v. Louisiana. There, the Justices reaffirmed that the Eighth Amendment generally prohibits imposition of the death penalty for criminal offenses that do not result in the death of the victim. To be sure, Justice Kennedy’s majority opinion declined to reach whether the same result would hold for “offenses against the State,” such as treason, espionage, terrorism, and (?) drug kingpin activity. And one could very well argue that desertion falls in the same category. But Kennedy did not hold that the death penalty is clearly permissible in such cases; it merely declined to hold that it was categorically forbidden.

In that regard, consider the Court of Military Appeals’ Vietnam-era decision in United States v. Averette. There, the question was the meaning of a jurisdictional provision of the UCMJ (Article 2(a)(10)), which, at the time, authorized trial of civilian contractors serving with or accompanying armed forces in the field “in time of war.” To avoid the constitutional question that would arise from a military trial of a civilian contractor (about which I’ve written a fair amount), the predecessor to the Court of Appeals for the Armed Forces held that “in time of war” should be interpreted to require a declaration of war–thereby forbidding a military trial of a civilian contractor during Vietnam. And when Congress in the 2006 Graham Amendment expanded the scope of the same provision to encompass “contingency operations,” it otherwise codified the holding of Averette.

In both cases, the underlying constitutional question isn’t settled; it’s messy (unlike various of the other uses of the term “in time of war” in the UCMJ, many of which wouldn’t raise constitutional questions as applied during a conflict like the one authorized by the AUMF). And in both cases, I suspect constitutional avoidance would justify interpreting “in time of war” narrowly, in order to allow courts to sidestep the messier question. Thus, as a matter of practice (since we don’t declare war anymore), desertion most likely won’t ever be a capital offense again, at least until or unless Congress amends Article 85 (as it amended Article 2(a)(10) in 2006). 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).