In a motion filed yesterday and available here, the defense team in the Bergdahl case (CAAFlog news page) asks that the charges against him be dismissed with prejudice or alternatively that the court-martial be prohibited from adjudging any punishment in the event he is convicted.
The basis for the defense request is the statement of Senator John McCain, current Chairman of the Senate Armed Services Committee, that:
If it comes out that [SGT Bergdahl] has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee …. 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. We need to have a hearing on that.
Mot. at 6 (marks in original). The motion then asserts that:
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.
Mot. at 12 (emphases in original).
While McCain’s comment may require some corrective measure by the court-martial, it’s hard to see how granting either of the forms of relief requested by the defense would be anything less than an enormous windfall for Bergdahl (who functionally confessed to the desertion charge and then made numerous other damaging admissions to a journalist that were broadcast – with Bergdahl’s consent – by NPR in the Serial Podcast). The defense must have an awfully dim view of the intestinal fortitude of the Army leaders responsible for this case if it really believes that the mere threat of a hearing will necessarily and irreparably lead to unfairness in the court-martial proceedings.
The reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army leaders in the face of McCain’s threat:
The motion also compares the comments by McCain about Bergdahl to those of other civilian leaders discussing various military justice issues including sexual assault. Such comments included these 2013 remarks by President Obama about sexual assault and were our #7 Military Justice Story of 2013. No accused (to my knowledge) won dismissal with prejudice (which presumes that there could never be a fair trial under any circumstances) or prohibition of all punishment (which presumes that no fair punishment could ever be adjudged) as a result of those comments. Bergdahl’s motion distinguishes those other comments as generic while asserting that “Sen. McCain’s threat, on the other hand, focuses like a laser on the prosecution of a single NCO, SGT Bergdahl.” Mot. at 14.
Ironically, the motion notes that Senator McCain himself is subject to court-martial (because he is a retired member of a regular component, and thus subject to the UCMJ for life), and asserts that his comments constitute a violation of Article 98:
The government conceded in its 6 July 2016 response to SGT Bergdahl’s third motion to compel (G App 25, p. 6) that Sen. McCain is subject to the UCMJ as a retired regular. See Art. 2(a)(4), UCMJ. His conduct violated the second sentence of Article 37(a) and therefore Article 98(2). The statute of limitations has not expired. Art. 43(b), UCMJ.
Mot. at 16. The motion acknowledges, however, that:
No purpose would be served by SGT Bergdahl or anyone else putting Sen. McCain on report, however. So far as we know, no one has ever been tried for a violation of Article 98.
Mot. at 16. See reaction to the Germans, above.