Private Travis King is Back. Now What?
I’ve given a few interviews related to Private King, but those are always fleeting and never address legal issues in the depth they deserve. For this reason, I’m writing this post.
If you’re reading this, you probably have a working knowledge of the basics of Private Travis King. He is the US Army soldier who ran across the border between North Korea and South Korea in July. For those of you who haven’t been keeping up, here are the basics. Private King was accused of several crimes in South Korea including assault and damage to government property. After his release from South Korean custody, the Army was sending him back to the United States to face follow-on actions. We don’t know if these were going to be administrative or judicial.
Once Private King was inside airport security and his escorts departed, he left the airport, joined a tour group to the Joint Security Area (JSA), and ran across the border into North Korea. In late September, North Korea returned Private King to US control. He was then transported to San Antonio (Brooke Army Medical Center (BAMC)) where medical providers will insure that he is medically safe to be released to, well, whatever he is facing. This might be brief. It might not be brief. It depends on what the medical providers decide.
This is where we pick things up. It starts with a question, and it is a big one. What happens to him once he is released from BAMC?
So, there are a lot of layers to this, and we could what-if it forever. Upfront, I will tell you that I have no inside knowledge. I don’t represent him. All I have is publicly available information. Knowing all of this, let’s look at the big issues.
First, will he be placed in custody? Assuming that the command intends to file court-martial charges, they will likely place him in pretrial confinement as a flight risk. This is what I’m betting will happen initially.
Second, what will his counsel do? My belief is that he already has assigned counsel through US Army Trial Defense Services (TDS). These are uniformed defense lawyers who represent soldiers who are in trouble. At this point, they are looking at the issues and determining the best way to proceed in his defense. This leads us to the third point.
What are the big issues that will determine Private King’s future punishment and/or service? As I see it, there are three.
- AWOL/Desertion. This is the most obvious issue. These crimes are similar, but distinctly different. AWOL (Absent WithOut Leave) is any unauthorized absence in the military. Desertion is an absence, but the state of mind is much more severe than an ordinary AWOL. The most common variety of Desertion is an absence with the intent to remain away permanently. This requires some form of proof. On its face, running into North Korea seems to be very strong evidence to prove this. However, it might be severely hampered by the second issue.
- What was his mental state/health at the time he left the airport and crossed into North Korea and is his mental state/health stable now (enough to participate in his defense and understand the proceedings). Assuming he faces court-martial, his counsel will likely file a request for a mental status evaluation (Rule for Court-Martial 706). This process is designed to address this issue. If it comes back showing that he lacked mental responsibility, prosecuting him for misconduct will be complicated.
- Looming over all of this is the nature of his alleged misconduct in South Korea. This misconduct is serious, embarrassing for the Army, and clearly bad for good order and discipline. It will be interesting to see how these are addressed, as they are casting a shadow over the entire process. It will be interesting to see how prosecutors try to frame this.
Finally, the fourth issue is the end state. Where will Private King be when the smoke clears? This is really impossible to answer, and the calculus involved is hazy, at best. Factors include the nature of his confinement in North Korea, how the government treats his alleged misconduct in South Korea, the nature of his confinement in South Korea, his mental state/health, and the motivations of his command.
I find it helpful to look at the case of Charles Robert Jenkins. He was in North Korea for 39 years after his defection in 1965. Upon his return to US control, he pleaded guilty to desertion and was sentenced to reduction to the lowest enlisted rank, 6 months of confinement, and a dishonorable discharge. Obviously, there are huge differences between Jenkins and King, but there are also some similarities.
Having said all of this, I’ll make my reckless and poorly-informed prediction: 6 months confinement and a Bad-Conduct Discharge. This assumes that a mental evaluation does not significantly affect the process. Factors I considered:
Factors in King’s Favor
- Mental State. Even if he is determined to be mentally responsible, there may be other factors like anxiety, depression, adjustment disorders, etc. that might garner some sympathy.
- Age
- Rank
- There may be aspects of his pre-service life that paint him in a sympathetic light.
- Possible credit for confinement in both South Korea and North Korea.
- Depending on how the prosecution treats the alleged misconduct in South Korea, this may muddy the process in his favor.
Factors not in King’s Favor
- The dramatic fashion in which he absented himself (and the effort and thought it required).
- The nature of his alleged misconduct in South Korea, assuming it is admissible and not mishandled by the prosecution.
As things progress and we learn new things, I’ll come back here and make updates from time to time. Maybe.
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