McCain comments won’t derail Bergdahl case

A military judge will not dismiss the case against Sgt. Bowe Bergdahl over comments made by Sen. John McCain (R-Ariz.).

Army Col. Jeffery Nance ruled Wednesday that Gen. Robert Abrams was not influenced by McCain’s comments when he decided to send the case to a general court-martial in his position as convening authority.

{mosads}“Though aware of Sen. McCain’s public comments to the effect that if SGT Bergdahl were not court-martialed and sent to jail he (Sen. McCain) would hold hearing on the matter, Gen. Abrams was not affected by those 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.”

At issue are comments McCain made in an October 2015 interview with the Boston Herald. McCain, chairman of the Senate Armed Services Committee, said he would hold a hearing if Bergdahl avoids punishment for walking off his base in 2009.

The comments came after a hearing officer recommended against prison for Bergdahl and said the case should be heard by a misdemeanor-level tribunal. In December, Abrams rejected the hearing officer’s recommendation and sent Bergdahl’s case to a general court-martial.

Bergdahl walked off his post in Afghanistan in June 2009 and was captured by the Taliban. He was held until a May 2014 prisoner swap.

Bergdahl is set to face a court-martial in February on charges of desertion and misbehavior before the enemy. The latter charge carries the potential sentence of life in prison.

Bergdahl’s lawyers argued that McCain’s comments can be seen as threats to the careers of those overseeing the case since his committee confirms military nominations.

Therefore, Bergdahl’s lawyers argued, his case should be tossed out or at least have Bergdahl face no punishment if he’s convicted.

But Nance denied the defense team’s motion, saying Abrams has no fear of retribution from McCain.

“Neither Sen. McCain, nor anyone else, has threatened or otherwise tried to forcefully influence Gen. Abrams decisions in this case,” Nance wrote. “Gen. Abrams decision as to the disposition of the charges in this case were his own.”

Further, Nance wrote, McCain’s statement did not constitute what’s known as unlawful command influence since he retired from active duty in 1981, the executive branch commands the military and not the legislative branch, and a reasonable member of the public can’t conclude the court proceedings have been unfair.

“A reasonable member of the public knowing all the fact and circumstances would recognize Sen. McCain’s ill-advised statement for just what they were — political posturing designed to embarrass a political opponent (President Obama) and gain some political advantage,” Nance wrote.

In an August pretrial hearing on the defense motion, Abrams disputed that McCain’s comments had any influence on him.

“Making public statements about the disposition of a very high-profile case by anyone is inappropriate,” Abrams testified.

He later added: “Up to this point no one — and I mean no one — has tried to influence me in any way.”