In considering such a topic I ask of the audience for one very important concession; something that is absolutely a requirement for having a reason-based discussion on the matter. I request that you leave your prejudices aside, especially those with prior military service, those with loved ones in the military, and those who have lost loved ones to the military. Please do not allow anecdotal evidence or appeals to emotion to cloud your logical assessment of the idea. Reason and logic deal only in fact based arguments, and do not suffer tenuous arguments based solely upon emotional judgments or individual experiences.

 

As a preface to what will be the main point, one must acknowledge that the very concept of criminal punishment for victimless crimes is abhorrent to a libertarian mind. Furthermore, the institution of positive law has been, and always will be detrimental to all causes liberty. Accepting that one man has the right to oblige another to follow unnecessarily restrictive rules, based solely upon the former’s position of authority, is perverse indeed. The belief that a ruling body has a duty to institute whichever laws it deems fit, even those meant to promote the safety of its citizenry, while possibly well-intentioned, has been the slippery slope to the omnipotent government we now endure.

 

And so as such, I will give no quarter to arguments for criminal penalties instituted for victimless crimes. Precedent and stare decisis are further meaningless in matters concerning justice, as instantaneous use of such - especially by lazy, corrupted black robes - is a very easy way to allow it to fall by the wayside.  The multitudes of entries within the Federal Register are an indeed an affront to true justice, but unlike all of the others in the long list of dogmatic laws enacted by the Nanny State, desertion is a special breed of despotism.

 

The very concept of desertion, and especially the way in which even modern society regards it, is an ages old means by which tyrannical governments have kept men within their service, and as such is nothing more than a legalized form of slavery. To read people on social media advocating for the most severe punishment in the Bowe Bergdahl case is incomprehensible when digested in the context of these cries coming from citizens of a nation that prides itself on being “the land of the free.”

 

Is a man (or woman) “free” in all matters except his decision to no longer be involved with the military? The answers to that question which favor the continuation of the current outlook on desertion are misguided, at best. The justifications given by this utterly perplexing chorus of bloodthirsty Americans, in order to warrant the charge in this specific instance, must be answered. For it is these justifications which transcend the current affair and lend a precarious credence to the rationale which holds this involuntary servitude as somehow lawful, and therefore must be confronted to help fully formulate the logical conclusion of the thesis.

 

“He put his brothers at risk.”

 

This claim is a stretch, and by stretch I mean absolutely impossible to prove. Prejudices and emotional opinions aside, the threat imposed on an occupying force is at no time visibly greater or lesser during a highly questionable and violently opposed occupation. At any time their presence is unwanted the occupying force can become subject to attacks, and to arbitrarily insinuate that the level of risk is greater is unfounded. Even a 20/20 hindsight review of events does not support the claim.

 

This idea is universal, and not only applicable to the Bergdahl affair; however what complicates this specific situation even more are the questions surrounding who we are fighting and why. As Sheldon Richman points out, the Taliban was not our enemy, ever, until we senselessly attacked them. But even without such a complication, the idea that Bowe Bergdahl, or any other deserter for that matter, put his “brothers” at greater risk by walking off is empirically not provable.

 

“Because of him 6 good men are dead. They wouldn’t have died if they weren’t out looking for him.”

 

If the first claim is untenable, how can this one be any different? To assert that men, who are in a war zone, are only dead because they participated in rescue ops, and that because the primary mission was changed to rescue ops the mission somehow became more deadly than it was before it changed, is the stretch of all stretches. Even stating that there is a higher likelihood of their still being alive is not feasible.

 

If the use of simple logic to deduce that reality is not enough, Reuters, with the help of an unnamed military official, has reconstructed the timeline of events surrounding the deaths of those 6 men and has determined that they occurred once “the period of intensive ground searches had already ended.” Even Bergdahl’s former squad leader says he “can't really say [he blames] Bergdahl to the fullest extent,” before predictably going on to say Bergdahl is somewhat to blame because “these soldiers very well could have been in a different place at a different time.” Yes, and I could have been born the wealthy son of Prince Charles had I not been born the son of my parents.

 

But we can deconstruct this claim even further. According to iCasualities.org, Paktika Province (where Bergdahl’s base is located) is the fourth deadliest of the 34 Afghan provinces, with 88 US soldiers killed between 2007 and 2011 (16 the year Bergdahl was captured). Maxim magazine, while not exactly a sought after source for statistical analysis, even listed two Paktika Province bases, one of them FOB Sharana where Bergdahl was based, as 2 of the 5 most deadly places in Afghanistan.

 

When you take the statistics along with Reuters’ reconstruction and the tacit backing off of placing full blame by his disgruntled squad mates, the claim completely falls apart. When you then apply the same logic across multiple conflicts, you begin to understand that the claim cannot be substantiated in almost any case.

 

Reason Magazine’s Anti-reason reasons

 

Reason Magazine’s editor-in-chief, Matt Welch, has a few very un-libertarian points he considers worthy of thought on the topic.(6) To be clear, some of his points are definitely worthy of consideration, however two are very disconcerting; the first of which being that

“if you want an all-volunteer military—and since the practical alternative to that is involuntary conscription—then you damn well better have a code of conduct precluding people from just wandering off[.]”

 

Chew on that for a second. If you want a voluntary military, you have to make it essentially involuntary by restricting the grounds to leave, so that it will stay voluntary. That is absurd. If you want an all voluntary military service, people should be allowed to separate should they determine they no longer want to voluntarily be part of the service. More on that a little lower.

The second point worth contending isn’t so obvious on its face, however it seems to be either very ignorant of reality, or very disingenuous:

“There are many ways to leave the battlefield, come home from a deployment, or exit the military altogether, not least of which is applying for conscientious objection or some of the many other categories of voluntary separation.”

 

For starters, Welch should “damn well” know that a person cannot qualify for conscientious objection over a specific war or facet of that war. Per Gillette v. United States – 401 U.S. 437(1971):

 

            Held:

 

            1.       The exemption for those who oppose "participation in war in any form" applies to those who oppose participating in all war and not to those who object to participation in a particular war only, even if the latter objection is religious in character. Pp. 401 U. S. 441-448.

 

These cases present the question whether conscientious objection to a particular war, rather than objection to war as such, relieves the objector from responsibilities of military training and service. Specifically, we are called upon to decide whether conscientious scruples relating to a particular conflict are within the purview of established provisions [Footnote 1] relieving conscientious objectors to war from military service.

 

[Petitioner Gillette] had stated his willingness to participate in a war of national defense or a war sponsored by the United Nations as a peace-keeping measure, but declared his opposition to American military operations in Vietnam, which he characterized as "unjust."

 

Moreover, the belief that a particular war at a particular time is unjust is, by its nature, changeable and subject to nullification by changing events. Since objection may fasten on any of an enormous number of variables, the claim is ultimately subjective, depending on the claimant's view of the facts in relation to his judgment that a given factor or congeries of factors colors the character of the war as a whole. In short, it is not at all obvious in theory what sorts of objections should be deemed sufficient to excuse an objector, and there is considerable force in the Government's contention that a program of excusing objectors to particular wars may be "impossible to conduct with any hope of reaching fair and consistent results. . . ." 

 

And as far as the “many other categories of voluntary separation” are concerned, take it from a lawyer with many years’ experience in military law. Here is the response on JustAnswer.com from 2012 to a person who was “seeking voluntary separation from the Army”:

Thanks for the chance to help. I am an attorney with over 12 years military law experience.

AR 638-200 is the regulation. But there is actually no basis for "I want out early".

You can [request] a "hardship" discharge under Ch 6 if you have a hardship. But a hardship basis requires 

 

            (1) The hardship or dependency is not temporary;
            (2) Conditions have arisen or have been aggravated to an excessive degree since entry in the Army, and the Soldier has made every                        reasonable effort to remedy the situation;
            (3) The administrative separation will eliminate or materially alleviate the condition; and
            (4) There are no other means of alleviation reasonably available.

If you meet that, you [can] apply through your S1 for a hardship discharge.

Chapter 16 has a way to request a discharge "due to reduction in force, strength limitations, or budgetary constraints" But if you look at the language in 16-7 you see that you can only apply for this when HQDA opens op the process. Basically, the Army will tell the soldiers when this type of discharge is available.

Finally, there is Ch 5. A "convenience of the government" discharge MAY work. 

While not voluntary, a "convenience of the government" discharge may also get you where you want to go. As the title says, its [sic] for the government's convenience, not yours..but if you can convince the command to support you this is also a way out.

So much for that. I can only hope that Welch was just not knowledgeable, rather than disingenuous. The military does not allow for people to change their mind. Once you sign up, you belong to them for as long as they want you, Slave.

 

“He can’t be let off the hook, because past deserters weren’t let off so easily.”

 

Rejecting the idea that desertion should be rethought because of the unfairness to people punished for desertion in the past is like opposing the freeing of slaves because past slaves were not made free. Yes, the military as opposed to slavery is voluntary, point conceded. However, can one be said to be “voluntarily” complying with something that they no longer want to comply with? Doesn’t that make the term of service no longer a voluntary one, and one of compulsion?

 

Therein lays the crux of the issue, and the implications of holding such a position are further reaching than I believe opponents of this thesis want to imagine. In essence, what a person who holds that belief is saying is that an individual has no ownership over their own mind and body. Sure, you voluntarily enlisted in the military, but once you did that, you relinquished your control over your future (at least temporally, unless the government wants to mandate another tour of duty). If you can consider the point as such and still remain steadfast in the belief that desertion should be criminally punished, then you must understand that you have a very poor concept of liberty and are probably deserving of the shackles you now bear.

 

Make no mistake, though. Through this opinion I am not advocating chaos. I am not stating that no one has an obligation to honor their contract. What I am saying is that criminal punishments, corporal or incarcerating, have no business being in effect for victimless offenses or contractual violations. And as we have seen, there are no victims when someone no longer wishes to serve in the military, regardless of the circumstances.

 

In a truly free society, justice would be administered restoratively, focusing on the nature of the offense, and how the wrongful party can repair the harm done. This process would absolutely include a charge of desertion, which is nothing more than a breach of contract. Repairing the harm done through a breach of contract cannot be accomplished through compelling the wrongful party to complete a service they do not want to take part in; nor can it be accomplished through detention; nor through physical harm; nor through issuing a scarlet letter (dishonorable discharge). Such punitive punishments do nothing to actually ameliorate the wronged party, and I challenge anyone to prove otherwise.

 

Consider the instance when a person walks away from their home and mortgage. Such an example is significantly more detrimental to the parties involved, and even outsiders, than when one walks away from the military:

 

• The mortgagee is no longer receiving the loan payments due for the amount fronted to the purchaser at the time of sale plus interest.

• The mortgagee will have to pay out for lawyers and fees if it wants even a chance to recoup some of that loss.

• The mortgagee will have to pay to maintain the property and any insurance, if it wants to continue to indemnify itself in case of a claim.

• In many cases the mortgagee will have to settle for far below the amount fronted at the time of original sale in order to relieve itself of the property.

• Additionally, the neighbors will suffer from a devaluation of their property due to the unsightliness of the abandoned property.

• The neighbors will also suffer a devaluation of their property if the mortgagee is forced to relinquish the property below the average market price.

 

There are probably more negative consequences which I have not included, but you get the drift. There are some serious losses involved in this instance that people will have to pay a price for. But what happens to the homeowner who walked away? A judgment may be filed against them which will prevent, or at least limit their chance for future credit transactions. Liens may be put against bank accounts and/or any real property they may still own. And that’s basically it. The former homeowner pays a legitimate price for the harm they have caused; however it’s a price which can basically be dispersed through bankruptcy court!

 

What happens when one walks away from the military, even in time of war? As we have already seen, the typical claims which have been and are being used do not stand up to scrutiny as legitimate costs of desertion. What are the real costs?

 

• The military loses out on the resources it invested in the soldier, ie through training costs, transportation costs, etc.

• The military loses one person who was willing to die for no reason.

 

That’s it. Other soldiers are not subject to additional risk. The frequency of deaths during the war is not shown to have increased. The desertion of nearly 40,000 soldiers since these last two wars began has not created a deficit of soldiers requiring “involuntary conscription.”(9) And no, it is not acceptable to think that the continuation of a wrong assuages the tyranny committed against those found guilty of desertion in the past.

 

The current punishments listed in the Uniform Code of Military Justice for Article 85 are cruel and unusual. If you want to punish someone for breaking their contract, it must be on a restorative basis or it is wholly unjust. Want to sue to recoup the investment costs? By all means, do it. Make them forfeit “all pay and allowances” and reduce them “to the lowest enlisted grade” as well. But confine them over questions of loyalty? Issue them a scarlet letter which they can never rid themselves of? If those aren’t the barbaric relics of the war mongering kings of old, then I don’t know what is. And the fidelity to those relics shown by the uncritical masses highlights the jingoism embraced by a society which has forgotten its (at least storied) roots.

 

- Chris Lewis  06/15/14 08:00 AM CT