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Should we be litigating this case via a podcast?
I’m one of the many who loved the first season of Serial—the Peabody Award-winning podcast spun off from NPR’s This American Life. It wasn’t just that the case of Adnan Syed (or, more neutrally, Hae Min Lee) made for a great story; it was that the questions raised by producer and host Sarah Koenig went to the core conundrum of American criminal justice—and the innate difficulty of establishing some kind of epistemological “truth” through a criminal trial. To me, the success of the first season is perhaps best encapsulated not in its 68 million (!) downloads, but in the very real distinction that most listeners ended up drawing—between whether or not Syed “did it,” and whether or not, had they been empaneled as jurors, they would have voted him guilty. Lawyers may well understand the significance of that distinction at both a micro and macro level, but Serial provoked far wider conversations about it—and about the broader state of criminal justice in this country.
Two episodes in, I couldn’t feel any more differently about Season 2, which is focusing on the case of Sgt. Bowe Bergdahl, the accused Army deserter-turned-Taliban-prisoner. It’s not just that I don’t find Bergdahl’s story nearly as compelling as Syed’s; it’s that I have real concerns about the pedagogical value of his story given both the pending nature of the actual criminal case (charges were just referred to a court-martial last Monday) and the myriad ways in which his case is about a whole lot more (and, at the same time, a whole lot less) than State v. Syed. To make a long story short, although one of my friends suggested that the real problem with this season is “just that it’s boring,” my concerns run far more to the substantive—and to the role and responsibility of the media in presenting some of the issues implicated by the Bergdahl affair to the public. Thus, I thought I’d sketch out my angst about the current season, both to see if it’s shared by anyone and on the off-chance that the producers might take these qualms to heart.
Near as I can tell, my angst about the current season of Serial can be broken out into five different sets of issues:
1. The Timing
My most obvious and immediate concern with this season’s focus on Bergdahl is the timing. Bergdahl’s is very much a case in progress, with charges referred just last Monday, with his arraignment scheduled for today, and with additional pre-trial hearings scheduled for February. If ever there was a concern about trying a case in public, this would seem to be it—especially given the substantial concerns Bergdahl’s lawyers have already raised about potential undue influence caused by public statements from, among others, Sen. John McCain and Republican presidential candidate Donald Trump. If this were just a run-of-the-mill criminal case, I might be less worried about the timing considerations, since typical criminal cases don’t tend to involve concerns about such high-level public and political interference. But especially on these facts, where so much is apparently going to turn on how the servicemembers sitting in judgment of Bergdahl ultimately assess his motive, I have real concerns about litigating this case contemporaneously via a podcast—not because it will obviously redound to the benefit of the government or the accused, specifically; but because it will only increase the amount of public pressure and scrutiny on a proceeding that is already awash in (and, perhaps, being negatively affected by) both.
2. The Secrecy Problem
One of the remarkable things about the first season of Serial is the cottage industry it spawned—in blogs, stories, and even podcasts about the podcast—to fact-check Serial’s presentation and/or to present countervailing perspectives and arguments. Sufficiently obsessed Baltimore-area listeners could even drive around to some of the locations at the heart of the story (did the Best Buy really have a pay phone?), and anyone could peruse the public records of the proceedings and form their own judgments about what they were hearing.
If ever there was a concern about trying a case in public, this would seem to be it—especially given the substantial concerns Bergdahl’s lawyers have already raised about potential undue influence caused by public statements.
It’s going to be a lot harder for that to happen this time around, given the pervasive secrecy surrounding so much of Bergdahl’s “story.” Note, for example, how little we’ve heard, in the first two episodes, from folks directly involved in the case (which goes back to my first point, above). The producers appear to be trying to offset this distinction through visual aids (the website has some cool maps and other features), but so much of what the U.S. military was up to at that time in Afghanistan (and today) remains shrouded in secrecy that it’s hard to shake the feeling that there’s plenty of potentially significant factual information to which neither we nor the producers are privy. There’s also the ongoing litigation over the lack of public access to the preliminary investigation report (about which I’ve previously blogged here), further underscoring just how much the public is still in the dark about the underlying facts and pre-trial proceedings (which apparently culminated in overridden recommendations that Bergdahl not face prison time). What we don’t know, Serial doesn’t know, either. And what Serial “knows” can’t be double-checked to nearly the same degree as during the first season.
Maybe it would be different if the U.S. government was cooperating with the producers (it sounds like it isn’t), but that would just raise its own problems.
3. The Military Justice System
Related to the secrecy concerns are the very different nature of proceedings before the military justice system, pursuant to rules and procedures to which most Americans have no exposure (other than their fictionalization in movies like A Few Good Men, High Crimes, and so on). Over at PrawfsBlawg, Eric Carpenter has penned a series of posts providing much more background on the specific military justice issues implicated by the Bergdahl case, but there’s a more structural concern that Eric hasn’t really touched on: Using the Bergdahl case to introduce listeners to the court-martial system is like using the O.J. Simpson prosecution to introduce unfamiliar listeners to criminal prosecutions in general—it’s atypical in almost every way that matters.
As significantly, the Bergdahl case doesn’t raise—yet, anyway—many of the more significant substantive and procedural issues plaguing the contemporary military justice system and currently the subject of detailed and wide-ranging reform conversations. As an introduction to the contemporary military justice system, then, a court-martial of a line soldier such as Bergdahl for classic battlefield offenses committed in an active combat zone will necessarily miss most of the truly interesting questions and problems arising out of today’s courts-martial—from the strange ways courts-martial handle sexual assault cases to the serious defects in appellate review of typical cases to efforts to harmonize procedural and evidentiary rules with evolving constitutional standards. The result will be to potentially leave listeners with the unfortunate impression that there’s nothing worth knowing about those issues as compared to the plight of Sgt. Bergdahl, when it’s quite possible that the reverse is true.
4. The Novelty of Bergdahl’s Case
Related to, but distinct from, that concern is the specific novelty of Bergdahl’s case. Although hundreds (if not thousands) of soldiers have been charged with desertion in the last 15 years, the other, more serious charge against Bergdahl—“misbehavior before the enemy”—is exceptionally rare, and has been leveled in a vanishing set of cases since the end of World War II. Add to that the factual uniqueness of Bergdahl’s case—as the only American soldier (1) captured and detained for such a long time by the Taliban, and (2) exchanged for Taliban detainees—and one wonders what broader lessons, exactly, listeners are supposed to take away from this enterprise.
Perhaps my greatest trepidation about this season is how it handles the deal that brought Bergdahl home.
Is Season 2 a story about the loneliness (and, even, helplessness) soldiers confront on the front lines? Is it a story about the psychological impact of this kind of warfare, more generally? Is it a story about the politics of the war against al-Qaeda and the Taliban (and, thus, one in which the AUMF reform debate ought to play quite a large role)? Is it a story about the military justice system? Or is it just a story about one guy who, whether for noble or nefarious purposes, picked a pretty bad time and place to make a really bad set of decisions? Suffice it to say that it’s not at all clear to me that, if the take away is anything but this last story, Bergdahl’s case is the right foil. And if it’s the last story, it seems like a very skewed way to introduce listeners to all of these other topics.
5. The Heavy Baggage of Guantánamo
Finally, perhaps my greatest trepidation about this season is how it handles the deal that brought Bergdahl home. Readers of this blog surely know the back story of the onerous Guantánamo transfer restrictions, and the rather sustained imbroglio set off by the Obama administration’s arguable violation thereof in the deal that sent five Taliban detainees at Guantánamo to Qatar in exchange for Sgt. Bergdahl (the legality of which is still being debated today). Indeed, whether the Bergdahl exchange was unlawful seems to me a complex, politically charged legal debate all unto itself. But as Charlie Savage’s book helps to underscore, there’s so much more to this story than the headlines—and it seems impossible to me to tell the story of Bergdahl’s release from captivity to a lay audience without carefully telling the entire story of the years-long struggle between President Obama and Congress over how to close Guantánamo, the stakes of which were only raisedby Bergdahl’s release.
In the end, maybe that’s my biggest problem with this season’s focus on Bergdahl: He’s the connective tissue between so many different stories that are worth telling, from the state of U.S. military operations in Afghanistan to the state of contemporary American military justice to the state of Guantánamo, and all things in between. But other than connecting these really interesting and important topics, he’s just a politically exceptional case of a soldier who, by his own admission, walked off his post. To tell his story at the expense of all of the important debates it implicates is, well, to miss a golden opportunity to raise public discourse over national security—and, if done superficially, to potentially harm that discourse, in the process. Adnan Syed was a remarkably good foil for a story about the uncertainty that plagues criminal justice. I really don’t know what Bowe Bergdahl is a good foil for—and I’m not sure that Serial’s producers know, either.
This story originally appeared on JustSecurity.org and has been republished with permission.
Steve Vladeck is a law professor and co-editor-in-chief of Just Security. He's also a senior editor of the Journal of National Security Law & Policy and a contributing editor to the Lawfare blog. He’s been published in the Yale Law Journal, the Harvard Law Review, the Columbia Law Review, the New York Times, the Los Angeles Times, the National Law Journal, MSNBC.com, and BuzzFeed.