Sgt. Bowe Bergdahl, right, talks with his military attorney, Lt. Col. Franklin Rosenblatt after a hearing at Fort Bragg, N.C., on Aug. 24, 2016. (Andrew Craft/The Fayetteville Observer via AP)
WASHINGTON — Accused Army deserter Sgt. Bowe Bergdahl’s case will not be dismissed over comments made by the chairman of the Senate Armed Services Committee, the judge overseeing the soldier’s court-martial ruled.
Attorneys for the soldier who spent five years in Taliban captivity had sought to have the charges against him dropped over comments made last October by Sen. John McCain, R-Ariz. Berghdal’s attorneys in an Aug. 1 motion argued the senator’s threat to hold a Senate Armed Services Committee hearing if the soldier went unpunished amounted to unlawful command influence.
The judge, Army Col. Jeffery R. Nance, wrote in his ruling Thursday that McCain’s assertion did not improperly influence anyone involved in Bergdahl’s case, including the four-star general who referred the soldier’s charges to a felony-level, general court-martial about two months after the senator’s statement.
Gen. Robert Abrams, the commander of Army Forces Command and the top officer overseeing Bergdahl’s case, testified Aug. 24 that McCain’s comments had no influence on his choice. Abrams’ decision went against the recommendations made by the officer who oversaw a preliminary hearing in Bergdahl’s case and advised it be sent to a misdemeanor-level special court-martial.
“Gen. Abrams was not affected by [McCain’s] comments and did not consider them in making his decision as to the disposition of the charges against Sgt. Bergdahl,” Nance wrote in his ruling. “In fact, Gen. Abrams thought the comments were inappropriate and that Sen. McCain should not have made them.”
Berghdal’s attorneys have also asked Nance to remove Abrams from his role as convening authority in the case, accusing him of being too close to Bergdhal’s recovery efforts in previous jobs, among other issues. Nance has not yet ruled on that motion, which was filed Aug. 12 by the defense.
Bergdahl’s lawyers argued McCain’s threat made it impossible for the public to be certain the soldier would receive a fair trial. Nance also dismissed that notion.
“A reasonable member of the public knowing all the facts and circumstances would recognize Sen. McCain’s ill-advised statements for just what they were – political posturing designed to embarrass a political opponent (President [Barack] Obama) and gain some political advantage,” Nance wrote. “Because he had no command authority or present ability to influence the decision whether or not to refer the case to trial, he could not possible be reasonably viewed as exercising unlawful influence.”
The judge added the Senate Armed Services Committee “simply has no ability to oversee the trial of this case in particular or trials by court-martial in general.”
Bergdahl, 30, is scheduled to face trial in February at Fort Bragg in North Carolina 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.” The more serious misbehavior charge carries a potential life sentence. He has yet to enter a plea. He is next expected in court at Fort Bragg on Nov. 14.
The soldier 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 crafted a “fantastic plan” to cause a disturbance that would place him in front of senior leaders to air complaints about his chain of command.
He was captured by Taliban fighters within hours of leaving Observation Post Mest and spent five years imprisoned by the Haqqani Network in Pakistan before he was released in a controversial swap for five senior Taliban leaders who had been held at the detention facility at Guantanamo Bay in Cuba.
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