Bergdahl lawyers appeal judge’s decision over McCain comments

Lawyers for Sgt. Bowe Bergdahl have appealed a military judge’s decision to allow the case against their client to continue, citing comments made by Sen. John McCain (R-Ariz.) that they see as threats.

{mosads}In a Thursday filing with the Army Court of Criminal Appeals, Bergdahl’s defense lawyers argued that the judge should have ruled that McCain’s remarks influenced a general’s decision to send the case to general court-martial.

“An unwelcome hearing is plainly one of the tools [the Senate Armed Services Committee] has to influence the armed forces or their leadership,” the lawyers wrote. “It is the legislative equivalent of saying, ‘If you do not sign over the deed to your house, I will make your life miserable.’ ”

Bergdahl’s lawyers have been seeking to get his case dismissed, or at least have him face no punishment if convicted, over comments McCain made a year ago.

McCain, chairman of the Senate Armed Services Committee, told the Boston Herald he would hold a hearing if Bergdahl avoids punishment for walking off his base in Afghanistan 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, Gen. Robert Abrams rejected the hearing officer’s recommendation and sent Bergdahl’s case to a general court-martial.

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

“It is difficult to imagine a more blatant threat to the administration of military justice than the one Sen. McCain uttered,” the lawyers wrote in Thursday’s appeal. “That he never carried through on it — or hasn’t yet — is of no moment. The threat itself is the problem.”

Last week, Army Col. Jeffery Nance ruled McCain’s comments did not constitute what’s known as unlawful command influence since McCain 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 facts 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.

Abrams has also denied the comments influenced him. In an August pretrial hearing, Abrams called the comments “inappropriate” and said he didn’t feel threatened because he has already achieved the highest rank of his career. 

“Up to this point no one — and I mean no one — has tried to influence me in any way,” he said.