Attorneys for Army Sgt. Bowe Bergdahl are trying to send his court case “off the judicial cliff” by arguing that U.S. Sen. John McCain improperly swayed military decision-makers with public comments on the case, prosecutors said Tuesday.
The arguments came at a pretrial hearing on defense allegations of “impermissible meddling” by McCain. The defense wants the judge to either throw out the charges or rule that Bergdahl will face no punishment if convicted.
Maj. Justin Oshana, an Army prosecutor, argued that there is no legal precedent for derailing a military trial based on comments from a member of Congress.
“They are asking this court to take a leap off the judicial cliff,” Oshana told the judge, Army Col. Jeffery Nance.
The defense contends that the prosecution was influenced by McCain, who chairs the Senate Armed Services Committee. The panel has the power to approve or scuttle assignments for top military commanders.
In September 2015, an officer who oversaw a preliminary hearing recommended that Bergdahl’s case be heard by a misdemeanor-level tribunal and said imprisonment wasn’t warranted. But the next month McCain told a reporter that the Senate panel would hold a hearing if Bergdahl wasn’t punished. Weeks later, Gen. Robert B. Abrams sent Bergdahl’s case to a general court-martial, rejecting the hearing officer’s recommendation.
Defense attorney Eugene Fidell argued Tuesday that McCain violated Bergdahl’s constitutional due process rights as well as a military law that prohibits unlawful command influence. Fidell said McCain is still subject to the Uniform Code of Military Justice as a retired Navy officer.
But Oshana said the senator wouldn’t meet the standard for unlawful command influence because he “doesn’t possess the mantle of command” as a senator.
“The fact that no other court has held this should be of grave concern to the court in being asked to be the first to do this,” Oshana told the judge.
In response, Nance quipped: “I don’t want to be the first to do this either.” However, Nance said he would consider the motion and rule at a later date.
Fidell countered that the lack of legal precedent only shows how egregious McCain’s conduct was.
“Until last October no retired person subject to the code who was elected to Congress has ever had the chutzpah to do what Sen. McCain did,” he told the judge.
Legal experts have said it will be hard to convince a judge to throw out the charges, but that Army officers may have understood McCain’s comments about holding a hearing as a tacit threat to their careers.
A spokesman for McCain, Dustin Walker, declined to comment in an email.
The hearing is scheduled to end Wednesday with testimony from Abrams. Nance said he wants to hear from Abrams about a separate motion seeking to disqualify Abrams so that a different commander can consider whether a general court martial is warranted.
Bergdahl, who is from Hailey, Idaho, walked off his post in Afghanistan in 2009 and wound up a captive of the Taliban and its allies until 2014. The Obama administration won his release by swapping him for Guantanamo Bay detainees, a move criticized by Republican lawmakers.
Bergdahl faces a court-martial on charges of desertion and misbehavior before the enemy, the latter of which carries up to a life sentence. The case is scheduled for trial in February 2017.
In the McCain motion, the defense revealed emails from late 2015 between Army officials and Senate committee staff seeking to have McCain back off his comments. An email from a colonel in the Army Office of the Chief of Legislative Liaison cited “serious concerns across the Army” that McCain’s statement could help Bergdahl show unlawful command influence.
That email was sent two days after McCain told a reporter in October 2015: “If it comes out that (Bergdahl) has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee.”
Associated Press
