According to several news stories, President-Elect Trump’s transition team is “compiling a list of senior current and former U.S. military officers who were directly involved in the withdrawal from Afghanistan and exploring whether they could be court-martialed for their involvement….” https://www.nbcnews.com/politics/politics-news/trump-transition-team-compiling-list-current-former-us-military-office-rcna180489. There are no on-the-record sources for the story and though various other media outlets have picked up the story, all of them appear to be relying upon the NBC reporting. Assuming, arguendo, the story’s validity, what is the process for these courts-martial to actually take place?
Although the story mentions “treason” as a potential charge, treason is not an enumerated UCMJ offense. Further, although federal offenses can, under some circumstances, be incorporated under Article 134, clause 3, UCMJ, this incorporation is limited to “crimes and offenses not capital” while treason is a potentially capital offense under federal law. So, unlikely as it may sound to a layman, treason does not appear to be an offense that may be tried at court-martial under currently existing law. (There are references to persons convicted of treason in the UCMJ and MCM but not to specific convictions at courts-martial.)
Once our hypothetical prosecutors have dispensed with treason as a possible charge, they will likely look at Articles 94 (mutiny or sedition), 99 (misbehavior before the enemy) and 103b (aiding the enemy). However, considering what is generally known about the Afghanistan withdrawal it would be difficult to come up with a chargesheet that could state any of the above offenses in a way that would state any offense. The more likely charges for our notional prosecutors would be Articles 92 (dereliction of duty), 108 (loss of military property) and 133 (conduct unbecoming an officer).
Once the charges are drafted, preferred and have gone through an Article 32 hearing, referral of the charges to a court-martial requires a convening authority. Any conventional convening authority (i.e. a commanding officer) referring the case raises the specter of unlawful command influence (UCI) from higher. Although the president or his transition team or cabinet are not subject to the UCMJ, the unlawful influence prohibition of Article 104a(1) applies to any court-martial convening authority, including the president, secretary of defense and the service secretaries (pursuant to Article 22). The prudent course for our hypothetical prosecutors would be to suggest that the president or secretary of defense convene the court-martial as that likely eliminates UCI as an issue. If not, the government’s case should be attacked for obvious UCI.
Now, for example, if we assume that the accused is a retired O-10, with date of rank on every active O-10 (who also often work directly for the convening authority), the pool of panel members will have to be mostly or exclusively drawn from retirees. At this point, a good defense counsel will litigate whether the Article 25 criteria were appropriately applied by the convening authority in creating the pool (which will have to be large enough to survive challenges and still leave a quorum). And of course, the defense could go judge alone.
As pretrial litigation commences, expect good defense counsel to argue that all of the classified intelligence reviewed by the accused were relevant to the decisions made and charged on the chargesheet and should be discoverable. Expect the intelligence at issue to be compartmented and drawing from all sources and almost every intelligence agency in the government as well as from partner nations. Expect extensive litigation under R.C.M. 505 and the need for cooperation across the entire executive branch for the case to proceed to trial.
Assuming the case actually proceeds to trial, expect obedience to orders to be raised as a defense and this defense would be very difficult for the prosecution to overcome and sustain a verdict which would survive appellate review. Ultimately, the then commander in chief gave the order for withdrawal and arguable mistakes in execution are not inherently criminal.