In a narrow decision, the U.S. military's top appeals court has upheld a conviction against former Army Sgt. Robert "Bowe" Bergdahl on charges of desertion and misbehavior before the enemy, saying public comments by President Donald Trump and the late Sen. John McCain condemning the soldier did not invalidate his prosecution.
The Court of Appeals for the Armed Forces handed down a decision Thursday on the sentence, which was delivered in 2017 and has already been upheld at the lower appellate level. All five appellate judges on the case agreed at least in part on the conclusion, but two judges filed partial dissents expressing their dismay at the viciousness with which Bergdahl was treated and the conduct of the leaders in question.
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Bergdahl, who abandoned his post in June 2009 on a deployment to Paktika province, Afghanistan, was subsequently captured by the Taliban and held as a prisoner of war for nearly five years. He was ultimately released and returned to the U.S. through a controversial prisoner exchange involving the release of five Taliban detainees held at Guantanamo Bay, Cuba.
While Bergdahl was received with a celebratory welcome at the White House upon his May 2014 return, public opinion rapidly turned against him as the facts of his disappearance and capture became known. He ultimately pleaded guilty at court-martial to desertion and misbehavior, and was sentenced in Nov. 2017 to a dishonorable discharge, reduction to the grade of private, and forfeiture of $1,000 in salary per month for ten months.
At issue in his appeal is whether his fair prosecution was jeopardized by the statements of senior leaders. On the campaign trail, Trump repeatedly called Bergdahl "a dirty, rotten traitor;" after he became president, his comments were more reserved, but he pointedly referred back to his previous remarks on the subject. And while Bergahl's case was in the investigation phase in 2015, 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."
These remarks are significant because of a military legal issue known as unlawful command influence. Because Trump is at the top of the military chain of command, remarks he makes might be interpreted as orders by the convening authority and other troops involved in the prosecution process. McCain, as a retired Navy officer and subject to the Uniform Code of Military Justice, also had the ability to commit actual or apparent UCI, the court found.
For Judge Kevin Ohlson, who delivered the opinion of the court, the deciding issue, however, was Bergdahl's decision to file a guilty plea, a step that comes with rigorous evaluation to ensure it is voluntary and not coerced.
"Based on Appellant's own words, no impartial observer would conclude that it was the comments made by the President of the United States and/or by the chairman of the Senate Armed Services Committee that caused Appellant to plead guilty; rather, it was the strength of the Government's evidence that caused him to take that step," Ohlson wrote.
He added that Bergdahl was given the chance to withdraw his guilty plea after his legal team raised the issue of apparent unlawful command influence in the case, but declined to do so.
"Indeed, it is telling that at his sentencing hearing after his guilty plea, and fully aware of his own case in mitigation, Appellant specifically recognized that he was deserving of punishment and asked to have a dishonorable discharge imposed upon him," Ohlson wrote.
The judge also noted that Bergdahl's sentence was not as harsh as it could have been; he received no confinement although he could have gotten a life sentence on the charges to which he pleaded guilty.
CAAF's chief judge, Scott Stucky, wrote a brief but poignant partial dissent, saying he favored dismissal of Bergdahl's charges in light of Trump and McCain's remarks. While McCain was within his rights to announce plans for a hearing, he said, he should not have conditioned that hearing on the sentence Bergdahl received. And Trump's comments, he wrote, were "vicious and demeaning" and clearly communicated
"One final thing needs to be said," Stucky wrote. "This case is unique in modern American military jurisprudence. Let us hope that we shall not see its like again."
Another CAAF judge, John E. Sparks, also said Bergdahl's charges should have been dismissed.
"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 in a lengthy partial dissent. "The vilification of Sergeant Bergdahl before, during, and after his court-martial was unprecedented, hostile, and pernicious in the extreme. It both placed an intolerable strain on the military justice system and denied the accused his due process right to a fair trial."
Bergdahl's attorney, Eugene Fidell, told Military.com he planned to continue to press for dismissal of charges.
"Yesterday's 3-2 decision validates our objection to President Trump's attack on the military judge and equally unprecedented vilification of Sergeant Bergdahl. It also validates our objection to the late Senator John McCain's threat to hold a hearing if Sergeant Bergdahl were not punished," he said via email. "Importantly, all but one of the judges held that unlawful command influence can be committed by a sitting president. We believe the two dissenting judges, who included the Chief Judge of the Court of Appeals, got the rest of the case right."
-- Hope Hodge Seck can be reached at hope.seck@military.com. Follow her on Twitter at @HopeSeck.
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