On Nov. 23, 1970, just off the coast of Martha’s Vineyard, a Lithuanian sailor named Simonas Kudirka jumped ship.
Leaping from the Soviet fishing vessel where he worked, Kudirka landed on the deck of the Vigilance, the U.S. Coast Guard cutter that was floating nearby. Although Kudirka sought asylum from the USSR, authorities aboard the Vigilance allowed Soviet sailors to take him back, resulting in his assault and imprisonment in a Lithuanian mental institution.
The situation that unfolded, in which Kudirka was revealed to be an American citizen, made national headlines and blossomed into a military controversy so large it became known as U.S. Coast Guard’s “Day of Shame.”
The military trial that followed would become the first major case for young lawyer Eugene R. Fidell — then a 25-year-old assistant legal officer serving in the U.S. Coast Guard.
Over four decades later, Fidell — who now lectures on military justice and American tribal law at the Yale Law School — finds himself at the center of another controversial case. Fidell is acting as the civilian representation for Army Sgt. Bowe Bergdahl, the 29-year-old who spent five years in Taliban captivity after reportedly walking off of his base in the Paktika province of Afghanistan.
THE ROAD AHEAD
Sitting in his office at YLS, Fidell recalled vividly the details of the long-ago Kudirka trial.
“It had tremendous human drama attached to it,” he said. “Kudirka was lucky to be alive.”
After a lengthy investigation, the U.S. Army charged Bergdahl last month with desertion and misbehavior in front of the enemy. Unlike Kudirka’s case, which garnered significant public sympathy, Bergdahl’s situation has evoked the opposite.
Facing what some are calling a landmark military controversy, Fidell said the intense public reaction against his client is due, in part, to political ire towards Obama.
“It’s a proxy war,” he said.
The public backlash surrounding the charges brought against Bergdahl has been violent at times. Short of suggesting the guillotine, Fidell said, a number of angry onlookers have been calling for his client’s execution. And while some early reports suggested that the death penalty might, in fact, be on the table if Bergdahl’s case ends up going to trial in a court-martial, Fidell was quick to dismiss this idea. He said it is not considered a capital case. As such, the heaviest possible punishment in the case of a conviction would be life in prison.
In the meantime, Bergdahl is free and working in an administrative capacity at Fort Sam Houston in San Antonio, Texas.
While Fidell could not comment on the case’s potential trajectory, he said, for now, he is focused on preparing for the Article 32 hearing — a kind of pre-trial hearing that some have dubbed the military equivalent of a grand jury.
“It’s really not that,” said Donald Guter, president and dean of the South Texas College of Law. “You can think of it really as a trial before a trial. The defense has much more of an opportunity to see the evidence and present the counter-evidence.”
Guter, who retired in 2002 from the U.S. Navy’s Judge Advocate General’s Corps as a rear admiral, said that, while the officer presiding over an Article 32 hearing will often recommend that the case goes to trial in a court-martial, there are many possible outcomes of the pre-trial.
He said that, from the standpoint of the prosecution that Fidell might face, there are two usual paths for the Article 32 proceedings: to lay out all of the evidence in order to convince the defense to opt for a plea agreement, or to present the minimum amount of evidence that is necessary to get it to proceed to court-martial. A plea agreement would forgo a trial.
Either way, Guter said, the two charges Bergdahl faces pose different challenges.
“On a desertion charge, it’s generally difficult for the government to move forward because they have to show intent to remain away permanently,” Guter said. “And that intent is shown at the moment of departure. That’s the hard part for the government, but the desertion charge is the lesser of the two charges in terms of seriousness.”
Guter said that misbehavior in front of the enemy, as the more serious charge, will likely be the crux of the issue during the proceedings.
ACADEMIA AND ADVOCACY
This is not the only hot-button military issue that Fidell has tackled in recent years.
In 2003, Fidell advocated on behalf of James Yee, the Muslim Army chaplain at Guantanamo against whom the U.S. Army levied a handful of charges, including espionage and aiding the enemy.
After the Army dropped all court-martial charges against Yee, he published a book reflecting on his experiences up to and during the trial titled “For God and Country: Faith and Patriotism Under Fire”. In it, Yee wrote that hiring Fidell was “one of the best decisions [he] ever made.”
Fidell declined to speak about how he came to represent Bergdahl. Nonetheless, with the Article 32 proceedings slated to begin July 8, Fidell said that, thus far, it has not been difficult to balance his duties as lecturer with those of a practicing lawyer.
“The tempo of the case has been such that it hasn’t really created a massive collision where I’ve had to choose one or the other,” Fidell said. “This is not business as usual; I think the pace has been slow. The Army has undertaken an enormous investigation.”
Fidell said he enjoys having a foot in both the academics and the practice of law, and he feels that both experiences enrich the other.
Students in his military justice course at Yale agreed.
Ben Neuhaus LAW ’17 said Fidell’s emphasis on professional ethics and practical applications significantly enriches academic discussion in the course.
Rebecca Forrestal LAW ’16 said she appreciated Fidell’s approachability as a military justice expert and as an instructor. She said his primary concern is encouraging more civilians to become interested in military justice issues.
“I think he actually wants you to think about what it’s like to be in the situation of the client,” Forrestal said.
Anirudh Sivaram ’15, an undergraduate who petitioned to enroll in the course, said that, while Fidell does not discuss his active cases in class, it has been interesting having him as an instructor as the Bergdahl case unfolds.
Fidell, who occasionally co-teaches a course on the Supreme Court with his wife, former New York Times Supreme Court correspondent Linda Greenhouse LAW ’78, has taught at YLS since 1993.
As the Florence Rogatz Visiting Lecturer in Law, Fidell laughed about the word “visiting” in his title.
“I’m like the man who came to dinner — I won’t leave!”