Sen. John McCain’s declaration last year that he would hold a hearing about the controversial case of Sgt. Bowe Bergdahl if the Army doesn’t punish him has prompted the soldier’s lawyers to call for the dismissal of his entire case, citing newly released emails by the government.
The motion, filed this week in an Army court at Fort Bragg, N.C., states that the service must dismiss both charges that Bergdahl faces in connection with walking away from his patrol base in eastern Afghanistan in June 2009 and getting captured by the Taliban. Bergdahl, now 30, was subsequently held captive over the border in Pakistan until President Obama approved a deal in May 2014 in which five Taliban detainees held at Guantanamo Bay were transferred to supervised release in Qatar.
McCain, a vociferous critic of the “five-for-one” trade, told reporters in New Hampshire in October 2015 that Bergdahl was “clearly a deserter” and had at the minimum put the lives of other soldiers who were searching for him in danger. That, combined with the call for a hearing, means the Army must dismiss the case “because any other action would leave a cloud over the independence of the proceeding and deny Bergdahl due process of law,” according to the motion.
A spokesman for McCain, Dustin Walker, declined to comment about the motion, citing the open nature of Bergdahl’s case.
The motion includes messages between Army officials and Senate Armed Services Committee staff members that show they were concerned about the effects of McCain’s comments and interest in the case.
In one example, the committee’s general counsel — identified elsewhere as Steve Barney — asked Army officials in a May 2015 email what the service’s views were “on the implications of conducting a hearing during an ongoing investigation that would help me inform the chairman of his options.” The Army had decided two months before that Bergdahl would face charges of desertion and misbehavior before the enemy, the latter of which can carry up to a life sentence.
An Army official responded two days later, warning that the service “has taken great care to avoid any actual impropriety or appearance of impropriety” in the case. Any hearing before the case was completed would “raise significant legal issues and may undermine our judicial process.” A major concern: unlawful command influence, in which a person with influence over a legal situation makes statements or carries out actions that can sway a court case.
Army officials held a preliminary hearing for the case in September, just ahead of McCain’s comments in New Hampshire on Oct. 11, 2015. The senator said that “if it comes out” that Bergdahl receives no punishment, McCain’s committee would “need to have a hearing on that.”
Behind the scenes, the Army emailed the Senate Armed Services Committee’s general counsel the following day, according to email traffic obtained by Bergdahl’s lawyer and released this week.
“Need some assistance,” the message said. “As you are likely aware, Chairman McCain has publicly announced that he will ‘hold a hearing’ if Sgt. Bergdahl does not go to jail. As we both know, UCI [unlawful command influence] technically requires a commander to make a comment. However, in this case, coming from the chairman of the oversight committee has raised some serious concerns across the Army.”
The Army official added that “obviously, the chairman’s statement is out there,” but asked for the release of a “curative statement” to ease concerns about McCain’s remarks. The official offered to assist the committee in crafting language to do so, but was not taken up on his offer.
Bergdahl’s new motion states that neither the Army nor anyone on McCain’s staff “walked the cat back” on McCain’s comments.
“One can only assume that the power dynamic between the Army and Sen. McCain was such that it was politically unthinkable to embarrass him in public by issuing such a corrective without his consent,” the motion said. “The result was that the Army maintained the peace with its impetuous Senate overseer and Sgt. Bergdahl’s due process rights were disregarded.”
Bergdahl is expected to face court-martial at Fort Bragg in February next year.