By Jennifer Goss
In August 2016, Sergeant (Sgt.) Bowe Bergdahl’s defense team filed a motion to dismiss all charges against him, claiming that Senator John McCain made comments that could unlawfully influence Bergdahl’s case and impact his right to due process. Sgt. Bergdahl was charged in 2015 with desertion and misbehavior before the enemy after he walked away from his post in Afghanistan in 2009 and was captured and held hostage by the Taliban for five years. Bergdahl’s trial will commence in February 2017, just weeks after Donald Trump becomes the President of the United States.
Senator John McCain voiced his opinion of the case, stating that Bergdahl is “clearly a deserter.” In October 2015, after Lt. Col. Mark Visger recommended Sgt. Bergdahl receive neither jail time nor a punitive discharge, Senator McCain threatened, “if it comes out that [Bergdahl] has no punishment, we’re going to have a hearing in the Senate Armed Services Committee.” As Chairman of the Senate Armed Services Committee, Senator McCain influences military budgets and spending, weapons, and senior officer promotions and appointments.
Senator McCain was not the only government official to make comments about Sgt. Bergdahl and his case. President-elect Trump expressed his personal feelings about Sgt. Bergdahl multiple times during his Presidential campaign. At a rally in Las Vegas in October 2015, President-elect Trump stated, “we’re tired of Sgt. Bergdahl, who’s a traitor, a no-good traitor, who should have been executed.” While in Iowa in December 2015, President-elect Trump remarked the U.S. should return Bergdahl to the Middle East, “Let’s fly him over. We’ll dump him right in the middle; throw him out of the plane. Should we give him a parachute or not? I say no.” According to Sgt. Bergdahl’s attorney’s “Trump Defamation Log,” President-elect Trump mentioned Bergdahl in this manner thirty times by January 2016. In addition to these statements, President-elect Trump discussed his policy his expectations for the military to follow orders, saying “they’re not going to refuse me, believe me. If I say do it, they’re going to do it. That’s what leadership is all about.” While this statement was not a direct reference to Bergdahl, it is indicative of the influence President-elect Trump expects to have over the military as Commander-in-Chief.
President-elect Trump’s and Senator McCain’s public remarks regarding Sgt. Bergdahl’s actions, trial, and potential punishment raise the issue of unlawful command influence. Article 37 of the Uniform Code of Military Justice (UCMJ) states:
No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.
Under the UCMJ, a convening authority or commanding officer may not influence or coerce a court to reach a specific finding or sentence in a case. Senator McCain is not a convening authority or commanding officer, but he is the Chairman of the Senate Armed Services Committee. While a civilian is not normally subject to the UCMJ, Bergdahl’s defense argued that Senator McCain’s public position of authority and ability to influence military budget created a potential to influence the military courts. President-elect Trump’s comments were not included in the August motion for dismissal due to unlawful command influence because Trump had no authority over the military at that time. Prior to the election, President-elect Trump was not a convening authority or a commanding officer, so the UCMJ did not apply. However, following the 2017 Presidential Inauguration, President-elect Trump will assume the role of Commander-in-Chief of the armed services. At that time, Bergdahl’s attorney can argue for the dismissal of all charges based on comments Trump made during his campaign that unduly influenced Bergdahl’s right to due process.
President-elect Trump would not be the first Commander-in-Chief criticized for unlawfully influencing a military court-martial. In 2011, the Department of Defense released its annual report on sexual assault in the military, estimating that 19,000 service members were survivors of sexual assault even though only 2617 incidents were reported. Consequently, the Senate Armed Services Committee investigated the military’s ability to combat sexual assault and the role of the commanding officer in the military justice process. In order to assert that sexual assault in the military would not be tolerated, military-wide training was implemented and many top military and government officials, including President Obama, publicly expressed their concerns. In a May 2013 news conference intended to express President Obama’s “no tolerance” policy on sexual assault in the military, President Obama demanded, “if we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.” These comments directly influenced the ruling in United States v. Johnson, where Navy Judge Commander Marcus Fulton ruled during pretrial hearings that President Obama’s comments would unlawfully influence the defendant’s sentencing and therefore the defendant could not be punitively discharged if found guilty. While some viewed President Obama’s comments as a mere expression of his “no tolerance” policy on sexual assault, the President’s specific examples of expected punishment in sexual assault cases constituted unlawful command influence.
Sgt. Bergdahl’s defense attorney’s motion in August 2016 for the dismissal of all charges against Sgt. Bergdahl was the first step in arguing that unlawful command influence is a factor in Bergdahl’s case. The defense argued that Senator McCain’s influence over the military has made it impossible for Bergdahl to have a fair trial. The defense team did not include a motion for President-elect Trump’s comments at the time because Trump had no authority over the military. President-elect Trump specifically discussed executing Bergdahl for his actions and stated the military will not refuse his orders. With the results of the election now in, we can expect to see an additional motion for dismissal of charges based on President-elect Trump’s new role as Commander-in-Chief. Bergdahl’s lawyers will probably argue both President-elect Trump and Senator McCain’s comments took the presumption of innocence and right to a fair trial away from Sgt. Bergdahl. Their comments, especially those made by the next President of the United States, could undermine the due process of the judicial system if left unchecked.