Here is CNN’s coverage of the military judge’s denial of SGT Bergdahl’s motion to dismiss the charges against him based on President Ttump’s campaign trail comments calling Bergdahl a “traitor” and saying that he should be shot. Bergdahl, as you probably know and CNN reports, “faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014,” until a prisoner swap returned him to US custody. Here is CNN’s link to a copy of the 8-page decision from Colonel Nance, the judge in the case. 

28 Responses to “Bergdahl Judge Denies Unlawful Command Influence Motion Based on POTUS Campaign Trail Comments”

  1. No Man says:

    That opinion was both highly readable and fairly convincing. Well done Colonel Nance. 

  2. Vulture says:

    Absurdly faulty logic.  The ACA has an effect on all Americans.  UCI in the Bergdahl case effects one.

  3. stewie says:

    If Fiddell wants UCI, all he has to do is tweet, and I believe something interesting will follow.

  4. Lone Bear says:

    The court will never dismiss for UCI. Trump could sit in the front row with a sign that said “hang him”  and the judge would cure it with an instruction. 

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

    Very well reasoned decision.  Spock would be proud.  And sounds like there will be extreme vetting of panel members.

  6. Bionic Barry Dylan says:

    Very solid reasoning and leaves the door open for Defense to argue UCI once there is a panel.

  7. Bionic Barry Dylan says:

    …or rather, unfair pretrial publicity.

  8. k fischer says:

    Not quite sure that I agree with paragraph 9 where the MJ states that the President is not “subject to this chapter.”  I understand that Article 2 defines who is “subject to this chapter,” but is the phrase “subject to this chapter” referring to those who are subject to the chapter as defined by Article 2?  It seems that the MJ believes “subject to this chapter” is a specific term that relates back to Article 2.
     
    I would think that the phrase is broader than list at Article 2, UCMJ.  Article 37 prohibits Commanding Officers and anyone Convening a General Court-martial from committing UCI.  I think that President Trump would be subject to the prohibitions under Article 37 because he is Commander in Chief and, while he hasn’t convened this one, he is authorized under Article 22 to convene a General Court-martial.  Therefore, Article 22 makes him “subject to this chapter.”  And, if he makes a statement while he is CINC about the Accused, then I believe that is actual UCI, which is what I believed when the previous POTUS made statements about his inflexible position towards the sentencing of those caught engaging in sex offenses.
     
    Other than that small discrepancy, I agree that Candidate Trump cannot commit UCI since he was not President at the time he made those statements.  And, it strongly appears that the MJ recognized the strong potential that the Accused’s right to a fair trial might be impinged by Candidate Trumps rhetoric and will take strong steps to ensure the Accused receives not only a fair trial, but the appearance of a fair trial, as well.  It also appears that he recognizes POTUS’ propensity to tweet and that the “landscape” may change requiring a reconsideration of his order. 

  9. Ozzie says:

    Extreme vetting sounds epic.
    If anyone on the panel, or anywhere else for that matter, is actually persuaded by then-candidate Trump’s comments about anything, they shouldn’t make it through Article 25 criteria anyway.

  10. stewie says:

    It’s not quite as thorough as “radical” vetting, but more thorough than “regular” vetting.

  11. Concerned Defender says:

    Soon we’ll hear protests about “extreme vetting” of Panel members.
    Overall sound denial of a hail-Mary psuedo good-faith based motion.  Motion was a stretch; you have to file it but a predictable result.  Well done COL Nance.  No windfall for Bergdahl.  
    Still not sure how one alleges a candidate committed UCI.  Particularly given that every step thus far has been Mr. Obama’s doing or under his command.  How were civilian Mr. Trumps candidacy statements MORE materially harmful or UCI than POTUS Obama’s subordinates Preferring, ART 32, Referring changes and denying half-dozen defense motions, and ultimately not granting pre-trial pardon?   Seems POTUS Trump simply inherited a case 85% of the way to completion under POTUS Obama and POTUS Trump’s done nothing to get it there.  
    One could also easily argue that he’s not a popular POTUS so his statements/UCI may have the opposite impact and the Panel may simply vote to nullify… 
    Imagine a scenario where a candidate is a famous prosecutor of pedophiles, and makes his career of it – 25 years as a special prosecutor, and says years worth of harsh statements against the crime.  Is that incurable UCI if he’s elected POTUS, nullifying the military’s ability to prosecute pedophilia??  I think not.
     
     

  12. k fischer says:

    I don’t know if I would call it pseudo good-faith.  I think that this is a case of first impression in that I don’t think we ever had a president who discussed a Court-martial during his or her campaign.  If anything, it opened the door to questions about POTUS’ statement on the panel questionnaire and perhaps (hopefully) somebody is strongly encouraging the POTUS to not tweet about this ruling.  So, has a SecDef ever have to knife hand a POTUS while strongly discouraging a course of action?  I’d like to get a picture of that.
     
    Certainly, if POTUS Trump made these types of statements now, then I would be the first to say it was UCI because I am consistent……(ahem, Stewie)…..with my analysis when the previous POTUS made UCI statements about sexual assault. Perhaps we will see C.A.A.F. take a position on the UCI issue and whether or not a CINC can commit UCI.  I vote “yes he can.”
     
    I would imagine that if Senator Claire McCaskill made as a part of her plank that she would ensure every GI charged with sexual assault will go to jail or be shot, then she got elected POTUS, I would have a problem with that.  In fact, I would have a yuuuuge problem with that and would file a motion to dismiss just like Mr. Fiddell did in this case, even though it is somewhat of a gray area to argue that a candidate committed UCI.

  13. Mike "No Man" Navarre says:

    Kfischer–I think Chief Judge Baker’s dissent (with Judge aryan largely concurring) in Hutchins is the best exposition of this issue, finding that while civilian leadership is not subject to the UCMJ there can be apparent UCI when civilian leadership comments on a case. I was honestly surprised the judge did not cite to it. The Govt brief in the landmark case of US v. Marcus Fulton also tracks the judges opinion, though the Govt diverges from CJ Baker and argues apparent UCI doesn’t apply to civilian leaders.

  14. stewie says:

    Apparently that’s an argument that I’m somehow not consistent kf, so let me respond.
     
    1. There’s a VAST difference between a President making general comments about sex assault in the military not directed at any one accused and those comments later being walked back, and a President (assuming arguendo he makes them at a later date) making SPECIFIC comments about a single accused. One need not get rid of every single sex assault case ever in the first instance to be “consistent” in believing that the second circumstance would be highly problematic.
     
    2. You really gotta lay off the hyperbole, it doesn’t help your arguments.
     
    As for CD, once again a veiled shot at another attorney with the “pseudo good faith” baloney.

  15. Mike "No Man" Navarre says:

    Just to be clear, I read CJ Baker as saying that the “UCI” potential for civilian leadership was not necessarily Art 37 based, but constitutional due process based. He then applied the apparent UCI framework from Biagase.

  16. k fischer says:

    1.  I’m glad we agree on there is a VAST difference.  In fact, I would argue that a CINC directing specific punishments for a specific offense stating his inflexible position towards sentencing that were NEVER walked back on by POTUS personally has a far more detrimental effect on a macro level for ALL those accused of sex offenses in the military getting a fair trial.
     
    2.  Hyperbole?  You keep saying that word, but I don’t think it means what you think it means. I was making an observation about your position on UCI when Obama committed it and when Trump might commit it now that he is elected President and apparently cannot close his Twitter account.  What I read from your post is that if POTUS tweeted, then it would be UCI.  I agree.  But, this differs from your opinion of when the previous POTUS committed UCI, which you appear not to believe was UCI.  Perhaps, because you did not know that having an inflexible disposition towards sentencing or a certain type of offense was in fact UCI at the time, until another poster informed you that it was.  Or maybe you believe that President Obama committed UCI, but you tried to deemphasize it by saying that it wasn’t that big a deal. 
     

     One need not get rid of every single sex assault case ever in the first instance to be “consistent”
     

    That my friend is hyperbole.  Just because one commits UCI, does not necessitate dismissal.  If the Government can convince the MJ beyond a reasonable doubt that the UCI will not will not affect the proceedings beyond a reasonable doubt, then dismissal is not necessary.  And, dismissal is a pretty drastic measure, which is not often taken by MJ’s.  So, I’m not saying that every single case calls for a dismissal.  What I am saying, however, is that the previous President committed UCI, and if the current President tweets about the case, then he, too, will be committing UCI.  You seem to think that President Obama did not commit UCI because he only made a few general comments about sexual assault in the military.  I disagree and would phrase it as President Obama clearly called for specified punishment about a certain type of offense highlighting his inflexible disposition towards certain offenses.  And, in one of my motions to dismiss or for an alternate disposition, I requested that a dismissal be taken off the findings worksheet, thereby not allowing the panel the option of giving the Accused a DD.  That would have cured the UCI without requiring the drastic measure of “getting rid” of the charge altogether.

  17. stewie says:

    You seem confused. You admit that the comments by Obama were “few” and “general” yet somehow twist that into “directing” specific punishments which is a pretty narrow reading and which were clarified later.
     
    If Trump stated in general (having never made the myriad number of direct comments he’s made about Bergdahl) that desertion is a bad thing and should be punished (also assuming we had some sort of “desertion epidemic” that Congress was spending years on addressing), it wouldn’t equate to talking about a SPECIFIC accused, and it wouldn’t, by itself, be UCI.
     
    You seem to be straining awfully hard to compare the two as equivalent, when they aren’t remotely. So you can “phrase it” any way you like, but objectively saying general comments about a type of offense is not equivalent to saying specific comments about a specific accused.
     
    It’s like comparing the NBA to high school basketball game.
    Bigly.

  18. k fischer says:

    Where did I “admit” that Obama’s comments were few and general?  I was paraphrasing what you said. 
     
    If Trump said generally that Desertion is a bad thing and should be dealt with under the full power of the UCMJ, then, that would be a general statement that I would not object to.  However, if he then went on to say “and when we find cowards who desert in a time of war, then they should be court-martialed, stripped of their rank, dishonorably discharged.  Period.”  Then, he would show an inflexible disposition towards certain offenses, i.e. Desertion, so that anyone who is convicted of desertion would be sentenced by a panel who might have heard the President’s statement and be influenced to dishonorably discharge anyone convicted of desertion, regardless of mitigation and extenuation.  I would have a yuuuge problem with that, bigly. 
     
    I think that while referring to a specific person is really, really detrimental to that one person’s ability to receive a fair trial, but I also believe that the statement about punishment for a specific offense, i.e. desertion, and what he expects the sentence to include would have a far more adverse affect in that it involves far more Accuseds than just one single person for whom he calls out.  This is what happened when the previous POTUS made the statement about sexual assault.
    I find it ironic that you made an NBA to a high school basketball game.  I remember when the former POTUS called a certain group Junior Varsity and now they are taking over the Middle East, even though they aren’t the Lakers.

  19. stewie says:

    I have no doubt that’s what you believe. There’s zero evidence that’s remotely what happened of course in any case, that any accused in any way was prejudiced or was convicted or sentenced because of a general statement by the President about sexual assault.
     
    Which goes back to your “oh I’m not saying they should necessarily all be dismissed” argument.  Problem with that argument is that there’s zero evidence a single panel member was led to a different result because of Obama’s yes few and general statements about sex assault. Not a single, specific case. So I guess you agree with me that none of them should be thrown out then. Progress!
     
    ISIS is taking over the Middle East? Here I thought they were losing ground literally everywhere and about to be pushed out of Mosul.  Ya learn something new every day.

  20. k fischer says:

     There’s zero evidence that’s remotely what happened of course in any case, that any accused in any way was prejudiced or was convicted or sentenced because of a general statement by the President about sexual assault.

     
    I wouldn’t expect there to be any evidence of this when panel members are given instructions not to discuss deliberations. 
     
    Regarding ISIS, I’m sorry.  After a year and a half of inaction, except for name calling, ISIS has been dealt some losses in 2016: approximately 25% of its fighters in Syria and 61% of hits fighters in Iraq.  And, in the last week there is a push to finally get them out of Mosul.

  21. stewie says:

    Inaction?  Please don’t make me start doing links. Read up on what has happened over the last “year and a half please” or what’s been going on over the last month to start because you clearly don’t see too well-informed.
     
    So to sum up…no evidence, and you wouldn’t expect evidence because despite voir dire and instructions you think panel members are sitting in deliberation rooms all across the country and saying “ordinarily, I’d acquit this guy, he’s clearly innocent, but Obama said…”

  22. k fischer says:

    Stewie,
     
    Between the JV/Laker comment to the New Yorker in January 2014 through June 2015 where he stated their is no final objective with regards to ISIS, please tell me what actions he took to destroy the group of people who began taking over Iraq and Syria and started cutting Christians heads off?  THAT was the year and a half of inactivity: January 2014 through June 2015…..which equals approximately 18 months.  Can I beat this dead horse any harder or make myself any clearer?
     
    You see, I agree that in 2016 there were some positive results in Iraq and Syria against ISIS.  That would have been a period of action within the last 18 months.  That’s why I referenced it after reading up on it by stating “ISIS has been dealt some losses in 2016: approximately 25% of its fighters in Syria and 61% of hits fighters in Iraq.  And, in the last week there is a push to finally get them out of Mosul.”
     
    You seem to cherry pick one word “Inaction?” and comment on that while intentionally completely disregarding everything else that I included in the sentence.  Or, you need a refresher course in reading comprehension. 
     
    Either way, I think you have a wonderful future at CNN or Fox News when you retire.

  23. stewie says:

    Yes, I should apparently for reasons I’m sure you will tell me ignore what he did during his presidency from June 15th til the end. I should ignore all the progress made over the last year because…well, it’s not in your defined time frame.
    I’d accuse you of post ad hoc reasoning here, but I fear it may be even “no hoc” reasoning.
    You talk about what he did with ISIS starting in Jan 14 when ISIS didn’t even make their push for territory in Iraq until later in that year, so you are starting the clock where you start it not because that’s a logical starting point because it gives the least amount of room for Obama to have “done anything” including a period of several months where there was literally nothing to do.
    You then establish an arbitrary time frame which just so happens to miss things like, the retaking of Mosul, the retaking of Fallujah, the significant degrading of ISIS’s footprint in both Syria and Iraq…
    But sure, I “Cherry pick.”
    But let’s recap.  Your entire first comment was simply “I remember when the former POTUS called a certain group Junior Varsity and now they are taking over the Middle East…”  You didn’t list a time frame, and reading comprehension says you were talking about now, today, at this point.
    I correctly called you out on that bit of silliness and then you established some weird timeframe where you state he took no “actions to destroy the group of people who began taking over Iraq and Syria and started cutting Christian heads off.” Or to be clear you asked “what actions” but of course we all know you think the answer is “none.” You aren’t waiting with baited breath for the answer, but let’s drop in just a FEW actions:
     
    1. Spoiler alert, ISIS cut off more than just the heads of Christians. They drowned, burned, shot, decapitated and otherwise killed a whole bunch of people of every religion in the area.
     
    2. US Airstrikes against ISIS began in the Summer of 14. These airstrikes saved 1Ks of lives, including persecuted Yazidis.  I’ll note, the Brits declined to join us in airstrikes so for a time, it was just, wait for it, us doing them (and probably the Syrians). 
     
    3. By Sep 14, the US was already committing special forces to fight ISIS in Iraq but yes primarily we were using airstrikes.
     
    4. By the end of the year hundreds of ISIL were killed by airstrikes and several towns and locations were cleared of ISIL in Iraq.  We were pounding Raqqa and other sites in Syria as well.
     
    5. By Jan 2015, the plan to retake Mosul was being put into play.  The US conducted airstrikes to assist Pershmerga forces in the effort.
     
    6. By March 2015, the plan to retake Tikrit was commenced. By your arbitrary deadline in 2015, Tikrit was retaken.
     
    I mean this is just with five minutes of effort.
     
    I’d recommend you not for CNN or Fox, but Breitbart.

  24. k fischer says:

    Well, considering I’m forming my opinion from CNN, which is quite friendly to the previous administration, I thought I was being pretty balanced. 
     
    What I gathered from reading this chronology was that ISIS took Fallujah in January 2014, whereafter Obama was asked about it where he made his JV team wearing Laker’s jerseys comment.  Then, ISIS did a whole bunch of other crap.  And, POTUS went to Congress in February 2015 to request authorization use military force against them.  Then, ISIS kept on taking a whole bunch of territory, wherein in the Summer of 15, they began their decline.  But, yes, it appears that ISIS is not taking over the Middle East they way they were from January 14 through Summer of 15.  I retracted that in my post at 28Feb@3:16; hell, I even apologized from the mistake. 
     
    Instead of stating: “I find it ironic that you made an NBA to a high school basketball game.  I remember when the former POTUS called a certain group Junior Varsity and now they are taking over the Middle East, even though they aren’t the Lakers,” I should have written: “I find it ironic that you made an NBA to a high school basketball game.  I remember when the former POTUS compared ISIS to a high school Junior Varsity team before they reaked havoc for about 13 months in the Middle East before he even requested authorization from Congress to initiate military action against them.”
     
    Thanks for the Breitbart compliment.  If I weren’t straight, I could fill Milo’s slot……Phrasing!
     

  25. stewie says:

    Well, whatever chronology you gathered from was incomplete. Tikrit was taken back in summer of 15. We were bombing starting in summer of 14.
     
    The reason Obama went to Congress in Feb 15 to request an authorization of use of force was because, correctly, members of both parties were telling him he needed to get that to continue the bombings because otherwise it was illegal. In fact, that discussion was pretty hot and heavy in the liberal crowd back then that Obama was doing illegal acts by not getting an AUMF from Congress first before actions in Iraq and Syria (but there was also republican criticism at the time as well).
     
     

  26. Concerned Defender says:

    I’ll wage into this completely irrelevant dialogue …. pardon me if my dates are off slightly as I’m going from memory.  But it’s otherwise factually accurate.
    Who was it that was CiC and totally withdrew the US military from a secured Iraq against the advice of all his military advisers?
    Who ran on that platform promise in 2008, then again promised it from 2009-2011, and then took credit for the withdrawal right up until about 2012?   Once things got bad in Iraq, who was it that blamed Bush for signing the 2009 SOFA?  Tried to distance himself from the withdrawal.
    Who was it that ignored ISIS and called them a JV squad as they marched across open terrain, and took US equipment abandoned by Iraqis, and took key terrain, from around 2012-2015?  Who was it that promised from around 2012-2014 that no more American ground troops would return to Iraq?  Kinda odd, because secretly we’ve been deploying battalions and Brigades over to Iraq, and they have been engaged in fighting and even some KIA, but that seems to not be reported much.
    Seems Mr. Obama had a really hard time making good decisions and telling the truth or taking any blame for his colossal errors and lies. Worst. POTUS. EVER.
    Before challenging me on these issues, do some homework.  
     

  27. Ganthet says:

    CD,
    As someone who deployed in support of Operation Inherent Resolve in 2015, it was and still is apparent that Iraq and its (still) ongoing massive political dysfunction is to blame for ISIL, not the U.S.  The only way the U.S. could have stayed in Iraq past 2011 was to stay with no SOFA since there was no Iraqi political will to negotiate a new one.  Without the Iraqis figuring out and sorting out their own sectarian mess, a continual U.S. occupation was just going to get more Americans needlessly killed while a low-level civil war raged on.  The supposed silver lining to ISIL emerging was that its threat to Iraq would force the Kurds, Sunnis, and Shias to hammer out some compromise to either make Iraq a viable state or separate, but even that seems to have been too much to hope for. 
    Labeling Obama, whose chief concern was to avoid getting more Americans needlessly killed in more long, endless wars where national survival was not at stake, the worst POTUS ever is partisan hackery at its worst.  There hasn’t been much reporting of American KIAs in Iraq (and Syria) because there haven’t been that many, since the vast majority of troops in Iraq are in train and equip/command and control roles, not because of some ridiculous media conspiracy to hide the truth to protect Obama.  Open source reporting has shown that the troops in Iraq performing combat roles consist primarily of air support or ranged artillery well behind the front lines.  
    If a Commander-in-Chief always followed the advice of their military advisors, we would likely be in the 50th or so year of the Vietnam War, having never left.

  28. Concerned Defender says:

    @ Gaunthet,
    I can speak on Iraq since I was there in every year from the surge until the withdrawal, and was among the last to leave.  Sorry, but I disagree entirely with your assessment.
    The SOFA signed in 2009 by Bush was certainly not written in stone and while the Iraqis were giving pushback about wanting to have the ability to prosecute Americans (I think the catalyst was a rape incident and the Blackwater shootings, among other events) a POTUS with any credibility and negotiation ability could have renewed our prior SOFAs.  That man clearly was not Mr. Obama or his staff who basically showed for years their inability to negotiate (Russia, Iran, Cuba, Bergdahl, and on and on).  And he didn’t even try because he wanted political expediency and to keep his ill-informed campaign promise to withdraw.  Or as I like to say, turn victory into defeat and run away.
    In Iraq, we had a high of ~900 US KIA in 2007, then ~320 in 2008, down to 60 and 54 in 2010 and 2011 respectively.  That trend would have continued, and both the US and Iraq would be far better situated today if we had stayed.  Note that since our retreat and re-engagement there, Iraq has suffered massive casualties, we’ve lost billions of dollars in equipment to our enemies, ISIS grew incredibly strong with theft of equipment and oil and private property, ISIS created a massive refugee problem in the region, and we’ve lost over 30 US KIA there since 2012 anyway.  We can split hairs on facts and figures, but by any assessment a total withdrawal was a colossal blunder.  Since our withdrawal hundreds of thousands of Iraqis became refugees and many violent victims of ISIS, or recruited by ISIS.  It was politically, militarily, and humanitarian totally irresponsible to leave such a power vacuum for an infant nation surrounded by hostile nations.   Suggesting otherwise pretty much pigeon holes you into a position of no-credibility.
    We can discuss other wars at length, but most military experts agree that politicians lost Korea and Vietnam as well, and both were wars our military should have and could have won.  Politicians lost them with lack of will to win and hold onto the win.  Mr. Obama was that politician, and he lost Iraq through cowardice, ineptitude, and political expediency.  I might be convinced otherwise if the evidence was there or if he was brilliant in other matters.  He was not.  That was his M.O.  Cowardice, ineptitude, and political expediency.  End of analysis.
     
     

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