Prosecution: Bergdahl charges can't be dropped over McCain comments

FORT BRAGG, N.C. – Accused deserter Sgt. Bowe Bergdahl’s court-martial should not be dismissed because Sen. John McCain asserted he would hold a congressional hearing if the soldier is not punished, prosecutors told a military judge Tuesday.

Earlier this month, Bergdahl’s attorneys asked Army Col. Jeffery R. Nance to drop the desertion and misbehavior before the enemy charges against their client because the threat by McCain, R-Ariz., constituted unlawful command influence, which violates Bergdahl’s right to due process.

But Army Maj. Justin C. Oshana, the lead prosecutor in the court-martial, argued the defense attorney’s motion is irrelevant because McCain is not part of the chain of command and no judge has ever thrown out a case because of congressional meddling.

“In the 227 years that Congress has existed in its present form, no case has been dismissed for … unlawful congressional influence,” Oshana said. “Defense council is attempting to create … a new form of unlawful command influence.”

Oshana’s comments came Tuesday on the second day of a pre-trial hearing ahead of Bergdahl’s general court-martial, which is scheduled to begin in February.

The hearing will continue into a third day when the four-star general in charge of the case will take the stand Wednesday to answer questions about some 100 letters from the public that he had destroyed.

Nance ruled Monday that Gen. Robert Abrams, the chief of Army Forces Command, must testify about those letters that came to light in a separate defense motion filed this month that sought to remove him as the convening authority in the case.

But on Tuesday, Bergdahl’s lead attorney, civilian Eugene R. Fidell, said Oshana’s argument about McCain’s comments missed the point. No judge has ever dismissed charges based on congressional meddling because it has never before been necessary, he argued.

“Until last October, no retired person subject to the [Uniform Code of Military Justice], who was elected to congress, had ever had the chutzpah to do what Sen. McCain did in this instance,” Fidell said.

As a retired Navy officer, McCain remains subject to the UCMJ. McCain served more than 20 years in the Navy, including more than five years in a Vietnamese prisoner of war camp.

And as the chairman of the Senate Armed Services Committee, McCain wields substantial power to influence the committee, which has oversight over broad military issues. The committee, among other things, confirms nominees to top civilian and uniformed Pentagon jobs.

Though it is unlikely Nance will dismiss the case altogether – the judge said Tuesday he would make a ruling “as soon as possible” – experts have said McCain’s statement does cause some concerns. For example, Abrams, as the convening authority, and other Army officials could see McCain’s assertion as a threat he would hold up promotions if Berghdahl is not found guilty and sent to prison, said Eric Carpenter, an assistant law professor at Florida International University and a former Army defense attorney and prosecutor.

Abrams in an affidavit submitted to the court Friday said he was not influenced by any outside sources in his decision in December to send Bergdahl’s case to a felony-level, general court-martial. That decision went against the recommendations of the officer who oversaw a preliminary hearing in September 2015 that the case be sent to a misdemeanor-level court and the soldier should not be imprisoned.

On Wednesday, Abrams could be asked to testify about any potential influence McCain’s comments had on his decision when he takes the stand.

Bergdahl, 30, has admitted to Army investigators he walked off his post in eastern Afghanistan in 2009. He has insisted he had no intention of deserting the Army. Instead, he said he wanted to cause a disturbance that would place him in front of military brass to file complaints about his chain of command.

He was captured by Taliban fighters within hours of leaving Observation Post Mest and spent five years in captivity in Pakistan before he was released to special operations forces in May 2014 in a controversial swap for five senior Taliban leaders who had been held at the detention facility at Guantanamo Bay in Cuba.

Bergdahl remains on active duty in a desk job at Joint Base San Antonio in Texas. He was arraigned on charges of “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty” in December. He has yet to enter a plea.

Dickstein.corey@stripes.com Twitter: @CDicksteinDC