The U.S. military’s highest court last week narrowly denied Army Sgt. Bowe Bergdahl’s appeal of his guilty plea and sentencing in 2017 for desertion and misbehavior before the enemy.
The 3-2 decision by the U.S. Court of Appeals for the Armed Forces, handed down Aug. 27, affirmed an equally close decision by the lower, three-judge U.S. Army Court of Criminal Appeals last year.
Bergdahl, who grew up near Hailey, contended that his case was prejudiced by “unlawful command influence,” citing disparaging comments made by candidate and later Commander in Chief Donald Trump and by the late Sen. John McCain, a former naval officer and chairman of the Senate Armed Services Committee.
Bergdahl retains the right to petition the U.S. Supreme Court to review the military court’s decision. His lawyer, Eugene R. Fidell, said in an interview that he is studying the decision “very carefully” before deciding with his client whether to take that step.
The Bergdahl saga began in June 2009, when he walked away from his combat observation post in Afghanistan with the intention of reporting to a general that poor leadership in his battalion was putting his platoon at risk of being sent on a suicide mission (a belief held “erroneously,” the recent court decision states). However, as the decision notes, Bergdahl was captured by the Taliban, held captive for five years under abominable conditions, exchanged for five members of the Taliban who were detainees at Guantanamo Bay and prosecuted for his misconduct. The military judge sentenced him to a dishonorable discharge, reduction in rank to private and partial forfeiture of pay.
The decision addressed remarks Trump made at a campaign rally calling Bergdahl a “dirty, rotten, no-good traitor” and statements that he later made while president saying he couldn’t comment on the case but that “I think people have heard my comments in the past.”
In October 2015, while Bergdahl’s case was pending a decision by a preliminary hearing officer on how it should proceed, McCain told a reporter that if Bergdahl is not punished, “we’re going to have to have a hearing in the Senate Armed Services Committee.”
Writing for the majority, Judge Kevin Ohlson stated that even though both Trump and McCain had the ability to influence the case, “[i]n light of both the severity of these offenses and the strength of the Government’s evidence, an objective, disinterested observer clearly would have expected the Army to court-martial Appellant for this conduct regardless of any public comments by President Trump or Senator McCain.”
The court also stated that “it cannot be emphasized strongly enough” that Bergdahl pleaded guilty, and noted that despite Trump’s and McCain’s statements, the judge imposed no prison time whatsoever.
“Indeed, it can be said that this result—whether one agrees with it or not—stands as a testament to the strength and independence of the military justice system,” the decision states.
Ohlson also noted that the record does not support Trump’s contention that Bergdahl was a “traitor.”
“Appellant was neither charged with nor convicted of either the federal crime of treason … or the military offense of aiding the enemy,” the decision states. “Indeed, there is simply no evidence that Appellant sought to defect to or to otherwise aid the Taliban.”
It notes that upon Bergdahl’s return to military custody, he provided significant intelligence.
“One witness at trial described the information supplied by Appellant as a ‘goldmine’ that ‘reshaped’ the Army’s understanding of hostage-taking in the region, potentially helping other prisoners of war in Afghanistan,” the decision states.
In a written dissent, Judge John Sparks contended that the president’s and late senator’s comments “placed an intolerable strain on the military justice system and denied the accused his due process right to a fair trial.”
“Never in the history of the modern military justice system has there been a case in which the highest level figures, including the Commander in Chief, have sought to publicly demean and defame a specific military accused,” Sparks wrote. “The vilification of Sergeant Bergdahl before, during, and after his court-martial was unprecedented, hostile, and pernicious in the extreme.”
Chief Judge Scott Stucky agreed with Sparks’ dissent, stating that “[t]his case has caused me as much concern as any in the more than thirteen years I have sat on this Court.
“President Trump’s vicious and demeaning remarks about the treatment he believed Appellant should receive were relayed to members of the public, some of whom would be called upon to decide Appellant’s fate,” his dissent states. “Given the reckless nature of the comments made and ratified by the President and the glare of publicity that surrounds the utterances of any president, and particularly this one, the government has a unique burden to bear in rebutting the appearance of unlawful influence. It has not done so.”
Both Sparks and Stucky asserted that “[u]nlawful influence exerted on the military trial process corrupts and erodes the very legitimacy of the system” and therefore the only appropriate remedy is dismissal of the findings and sentence.
Attorney Fidell said in an interview that beyond its impact on his client, the decision is important due to agreement among four of the five judges that a president’s comments can be considered unlawful command influence.
“The case does nail down a point that military law practitioners have long discussed,” he said. “We now have a square holding that a president can commit unlawful command influence.”