Comments made by Sen. John McCain, R-Ariz., about Bergdahl and the controversial swap that freed him from his Taliban captors have made it impossible for the soldier to receive a fair trial, the defense attorneys argue in the motion filed late Monday. They wrote Judge Col. Jeffrey R. Nance should at least limit Bergdahl's potential sentence to no punishment. Bergdahl, 30, was captured by Taliban fighters in June 2009 after leaving his post in eastern Afghanistan. He was freed in May 2014 after the White House approved the release of five senior-level Taliban detainees to Qatar from the detention facility at Guantanamo Bay in Cuba. In March 2015, the Army charged Bergdahl with desertion and misbehavior before the enemy. He faces a potential sentence of life in prison if convicted of the more serious misbehavior charge.
Defense attorneys -- lead by civilian Eugene R. Fidell -- cited, among other comments McCain has made, an October statement the senator made to reporters in New Hampshire as "impermissible meddling." The comment was made before Bergdahl's charges were referred to a general court-martial in December. "If it comes out that [Bergdahl] has no punishment, we're going to have a hearing in the Senate Armed Services Committee," McCain told a reporter on Oct. 11 during a campaign stop with fellow Armed Services Committee member Sen. Lindsey Graham, who was then running for president. "… And I am not prejudging, OK, but it is well known that in the searches for Bergdahl, after -- we know now -- he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter."
Threatening congressional inquiry into an open criminal case, defense attorneys wrote, was an "abuse of his authority" that might have handcuffed senior Army leaders into pursuing the felony-level general court-martial. The Armed Services Committee is responsible for confirming presidential appointments of the Pentagon's senior military commanders and its top civilians, among other obligations. The chairman of the committee, Bergdahl's attorneys wrote, "wields great power of SASC decision making," "It is not rocket science to see what was wrong with Sen. McCain's comments," Bergdahl's attorneys wrote in the motion. "It is difficult to imagine a more blatant threat to the fair administration of military justice than the one Sen. McCain uttered. That he never carried through on it -- or hasn't yet -- is of no moment. The threat itself is the problem." McCain, a former Navy pilot who was held prisoner of war and tortured for five years during the Vietnam War, could not be reached for comment.
Army leadership appears to have warned Armed Service Committee advisers of the potential problems that McCain's comments could cause in an Oct. 13 email. The partially redacted email from a colonel in the Army's legislative liaison office was provided Friday to defense attorneys on Nance's order. The Army had previously redacted the entire text of the email when it provided it to Bergdahl's attorneys in response to a Freedom of Information Act inquiry. In that email, the colonel, whose name is redacted, wrote while unlawful command influence typically requires comment from a military commander, the comments raised by McCain, who leads a committee with military oversight, "has raised some serious concerns across the Army." "If it is at all possible to have [McCain] issue a curative statement … that could be tremendously helpful," wrote the colonel, who offered to draft a potential statement for the senator, citing his "faith in the [Uniform Code of Military Justice] process and senior commanders to make the right decisions." McCain has not issued such a statement to date.
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