Judge won't dismiss Bergdahl case over McCain comments

RALEIGH, N.C. — A military judge has rejected arguments that Sen. John McCain improperly swayed the prosecution of Army Sgt. Bowe Bergdahl with negative comments about the soldier who walked off his post in Afghanistan.
Defense lawyers for Bergdahl argued that McCain exerted unlawful command influence by telling a reporter in 2015 that the Senate committee he leads would hold a hearing if Bergdahl weren't punished.

Bergdahl, who is scheduled for a military trial in February 2017, disappeared from his post in Afghanistan in June of 2009 and wound up being held captive by the Taliban and its allies for five years. The defense had asked the judge to dismiss charges of desertion and misbehavior before the enemy against Bergdahl, or rule that he face no punishment if convicted.
But Army judge Col. Jeffery Nance decided that the comments by the Republican senator from Arizona haven't unfairly influenced the case.

"No reasonable member of the public knowing that Senator McCain has absolutely no command authority or color of command authority over SGT Bergdahl's court-martial ... could ever reasonably conclude that the proceedings were unfair — no matter what he said or did," Nance wrote in the ruling filed Wednesday.

Nance also wrote that he could find no legal precedent that would make McCain, as a retired Navy officer, still subject to the section of the military justice code prohibiting unlawful command influence. Military law prohibits commanders — who may outrank military judges, lawyers, jury members or witnesses — from using their positions to sway the outcomes of court cases.

Bergdahl's lawyers said they plan to appeal the decision.

"We believe the decision is incorrect and intend to take the matter to the Army Court of Criminal Appeals as soon as possible," attorney Eugene Fidell wrote in an email Friday.

Bergdahl has said he left his post in Afghanistan to draw attention to what he saw as bad decisions by superiors, and he hoped to walk to another base to discuss concerns with a top commander. He was swiftly captured by the Taliban and remained a prisoner until President Barack Obama exchanged five Guantanamo Bay detainees for his safe return in 2014. The swap was sharply criticized by some in Congress.

Bergdahl, who is from Idaho, has since been assigned to desk duty at a Texas Army base.

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: "If it comes out that (Bergdahl) has no punishment, we're going to have to have a hearing in the Senate Armed Services Committee." Experts on military law have said the comment could be perceived by officers involved in the case as a tacit threat.

Weeks later, Gen. Robert B. Abrams sent Bergdahl's case to a general court-martial, rejecting the hearing officer's recommendation. The relatively rare charge of misbehavior before the enemy carries a maximum penalty of life in prison.

Abrams testified at a pretrial hearing that he wasn't influenced by McCain's comments and that he found them inappropriate.

But McCain caused enough concern that within days of his comments, Army officials emailed Senate committee staff seeking to have McCain back away from the remarks. In their motion, the defense revealed an email from the Army Office of the Chief of Legislative Liaison citing "serious concerns across the Army" that McCain's statement could help Bergdahl show unlawful command influence.

For his part, McCain denied in August that he had improperly influenced the case.

"No one believes that. Lawyers can say whatever they want to; no one believes it," he told a reporter.