Here is a link to The Hill’s coverage of SGT Bowe Bergdahl’s motion to dismiss the charges against him based on Unlawful Command Influence (UCI). The motion argues, according to the article, that President Trump’s statements on the campaign trail calling for Bergdahl’s execution make it impossible for the SGT to obtain a fair trial. Bergdahl Will face a General Court Martial in April on charges of “desertion and misbehavior before the enemy after walking away from his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.” More from Politico here

18 Responses to “SGT Bergdahl Files UCI Motion After Inauguration”

  1. Vulture says:

    The pictures in the motion pantomiming a gun are nice.  Maybe the government will show pictures of BB with a beard to show that he was dressing like the Taliban.

  2. Michael Korte says:

    Putting pictures inside the briefs is creative and persuasive advocacy and that should be encouraged throughout the JAG Corps.
    In accordance with the Can’t Say Anything Nice Then Don’t Say Anything At All Doctrine, that concludes my comment to Bergdahl’s UCI motion and all subsequent ones.

  3. stewie says:

    Eh, seems like a legit attempt to me, and the pics are smart as well. It likely won’t work, but it’s not frivolous.

  4. Concerned Defender says:

    Eh, I’d say that anything BB gets he deserves.  The Army has a history of simply shooting traitors, which BB appears to be.  The kinder-gentler Army doesn’t do that anymore, which is fine.  Due process is important.  However, BB is only here and facing trial due to the outlandishly illegal, unpopular, and misguided Obama decision (without advice or consent of Congress, mind you, and spending money he wasn’t authorized to spend) to trade 5 high level terrorists (who certainly had a hand in the deaths of US Service members, so let us not ignore or forget that) giving those terrorists their freedom after a brief incarceration to go on and do more bad things, which they certainly will.  Reports have shown a roughly 20% recidivism rate for the 700 released from Gitmo, and those Obama traded were the top leaders and most wanted.  In short, extremely dangerous terrorists.  It was an illegal and bad trade, and that’s the starting point.
    All this other smoke and mirrors about Trump’s opinions are meaningless.  Obama railed about and certainly committed direct UCI on sex assault dispositions, which actually changed the way the services and the Sec Army handled sex assault allegations, yet I’m unaware of any successful UCI motions materially granting relief.  
    Additionally, Trump isn’t going to taken any action interfering with this.  Let’s not forget that Obama was the CiC during the entire process leading until yesterday – preferral, ART 32, referral, and pret-trial.  It’s not as though Trump has suddenly taken an otherwise free and high performing Soldier, and then started this trial process.  
    I believe Defense will now go 0-8 in motions and appeals for material relief, factoring in the denial of his appeal to Obama for relief or pardon.  Which, by the way, must be devastating to BB, given that drug lords, violent criminals, and traitor Manning got relief handed out…  pretty bad when Obama isn’t coming to the rescue (again) for BB.
     

  5. Concerned Defender says:

    Can’t edit above – wanted to add:
    Justice needs a balancing test.  
    If he is exonerated, he would effectively get a $250,000 windfall in income, an Honorable discharge, purple heart, and be a “war hero” among all the other benefits we all enjoy.  And setting aside his “rough treatment in captivity” which apparently left no lasting impacts since he at least physically appears fine, he will have not suffered any true punishments.   In fact the opposite, he would be effectively rewarded for misconduct in the above mentioned ways.  He would also avoid a Federal conviction, the stigma, prison, etc.  In total, that would be a total injustice and a disease for the services.  
    Most veterans I know believe BB to be among the worst, and certainly guilty.  If we allowed him to go free, that would severely undermine the UCMJ.  
    And other than some statements on Tweets and talk shows and campaign trails, Trump has really had minimal to zero impact on any proceedings.

  6. Vulture says:

    Si non habes nisi dicere aliquid omnino non. 
    It has a nice ring to it.

  7. Tami a/k/a Princess Leia says:

    Motion denied, for the simple fact that Trump was merely a Presidential candidate at the time of his comments.

  8. DCGoneGalt says:

    It’s a really interesting issue but likely a loser given this is a field where the vast majority of military judges in the vast majority of Art 120 cases over the last few years couldn’t even summon the honesty and courage to even shift the burden to the Gubmint on UCI motions.  So the defense could probably show campaign footage of Trump saying “Bergdahl is a traitor and any officer who wouldn’t have him shot should be should also be taken out at dawn and shot” and I think most judges would come up with a reason to conclude “there has been no evidence of UCI and therefore the defense has not met their burden” without even putting an asterisk after that sentence with a footnoted “j/k, lol”.
     
    But then again, I’m quite jaded and bitter after watching the sh!tshow of Art 120 UCI over the last ~ 5 years.

  9. Vulture says:

    DCGG.  Don’t be so bitter.  People like to talk a lot about the “Trump Card.”  But Defense called what could be an Ace in the Hole with Chuck Hagel. 
    Joint MIA/POW Task Force Agency resides in the Air Force but it is a DoD organization.  Removing the question of political influence from the President to a department is a big issue in this discussion.  DoD had to get BB back and they had the means and the authority to make that happen regardless of what anyone else was thinking about it.  Chuck Hagel got thrown under the bus, as they say, later but few are going to question that he is a straight shooter.  He is going to have to testify that he operated within the bounds of the law, at least as he felt obligated to pursue it.  I think it is something like 2600 that are still missing from Vietnam.  He wasn’t going to have one go that way on his watch.
    That leaves the question of how powerful the President’s influence is.  Hagel got bumped partially for his moderate tone, exactly what Obama asked him to be.  Therein the question of what obligation members junior would feel to attend to the CIC wishes.  I think that Tami’s result is a bit painful because it requires a military court to get into presidential politics.  Departmental level politics is a more manageable.  Not to say that I think it will be successful.
     
    And if you are that jaded we will have to start calling you DC gone Darth.

  10. Snoke says:

    Vulture,
     
    DCCG is so jaded that he is Darth?  So, what would you call Concerned Defender who has reached the Mace Windu Jedi level of Jaded?  A…..wait for it…….”Jadei?”
     
    And DCGG is correct in his objadetivity.  Military Judges and the Appellate Courts have pretty much thrust their collective heads in the sand regarding the rampant UCI in Article 120 cases.  So, color me jade as well because I happen to agree with him.

  11. Vulture says:

    On sexual assault cases, for the most part, I would call Concerned Defender, correct.

  12. Vulture says:

    Maybe for a ‘large part’. 

  13. Concerned Defender says:

    On 120/125 cases, the then-current CiC and Senators and senior military officers like the Sec. Defense and/or Sec. Army put their thumbs on the scales of justice openly and plainly in speeches and writing.  That is UCI.  Plainly.  
    On BB, then *candidate* Trump (no power, no influence for UCI purposes) made statements about disposition.  It was however then POTUS Obama and his military at the time that preferred, held the 32, and referred charges against BB.  Hard indeed to blame Mr. Trump for any perceived UCI, given that the Obama admin is pretty much at odds with the Trump administration in most matters.  It’s quite noteworthy also, that POTUS Obama had the opportunity at any time for many months to simply pardon BB and turn this off with the stroke of a pen or a phone call.  That also did not happen.  Note he wasn’t reluctant to offer relief to accused/convicts, as he did with Manning and thousands of other convicts….  If you can’t convince POTUS Obama that BB was worthy of a pen stroke, you can’t say that Mr. Trump now POTUS Trump has any thumb on any BB scale.
    Mr. Trump, and candidate Trump, and now POTUS Trump, has had exactly 0.00% of influence on BB’s disposition with trial now just weeks away.  Zero UCI.  To coin then-POTUS Obama, “not a smidgen.” 

  14. DCGoneGalt says:

    CD:  Yes, the comments were made when he was a candidate but now that he is the CinC there may be actual command influence depending on voir dire answers.  However, now that he is President I would find it hard to argue that there isn’t a burden shifting appearance of UCI, regardless of voir dire answers.  Then again, military judges for years have kept a straight face while finding that Art 120 cases didn’t even raise any evidence of the appearance of UCI because  . . . umm . . . I guess because a former SECDEF wrote a memo saying there wasn’t any UCI. 

  15. Concerned Defender says:

    The best arguments for UCI up until this point fall flat for the mere fact that it was the Obama admin and Army that has driven the train on preferral, ART 32, and referral and no clemency or pardon was granted.   BB is facing trial in a few months as the likely, natural, probable and direct chain of everything that occurred from 2009 until this moment as I type this without one single influence from candidate or now POTUS Trump.  It again should not be ignored that then POTUS Obama had the absolute unfettered ability to rescue BB and he did not.  Quite very telling indeed.  While speculating about it, I’m fairly confident that many high level discussions and decisions would  have occurred as to the merits of BB as POTUS Obama was reviewing and getting hand cramps signing clemency orders for THOUSANDS of individuals  (among the most generous POTUS in history).   Pew Research puts him at over 1900 requests for clemency granted.  The fact that BB was not among those figures demonstrates quite a few important metrics that should be considered in any Trump UCI assessment.  If Obama passed on clemency for BB, perhaps BB is right where BB needs to be.  
    Let’s also remember that defense has lost 100% of motions and appeals (like 6 or 7) germane to disposition leading up to this.  Whether frivolous or not, and I simply cannot say, they have all been ruled against.  So, this isn’t a frivolous case, and it has withstood a mountain of repeated review and scrutiny from every perceptible angle.  
    The arguments on Trump UCI are laughable in my view.  

  16. DCGoneGalt says:

    CD:  To this point in the case you are correct.  However, there will now be a panel chosen (assuming that’s the forum, and even if not there’s the same issue with an MJ and the convening authority) among members whose CinC has clearly stated his opinion of the case and an appropriate punishment.  I am of the opinion that void dire will determine if there was actual UCI but at this point there is certainly the burden shifting appearance of UCI.

  17. Vulture says:

    It’s a military related offense, in a military court, in military’s separate society.  Not filing a UCI motion would make it a military separate reality.  40 or so instances of derogatory remarks, at least 3 expressions of bodily violence, and further as response to public statements against BB.  Take a historical look at public perception on military justice, Dryfus, Commander McVey, and say that it does not have an impact.  I’m not willing to live in that reality CD. 
    Maybe DC will back me up here: at the beginning of Atlas Shrugged a supporting character is remembering a tree that he saw as a child.  It was big, it was mighty, and it was strong; it was immortal.  Then a lighting bolt struck it and it broke open to show that it was hollow.  As a mid level executive he looked to the big corporate building.  It was big, it was mighty, it was strong; it was to fall before the end of the book.  If the Military Justice system is going to suffer from a motion of this kind, it is hollow, it needs a mortal enemy.

  18. DCGoneGalt says:

    Eddie Willers