In an opinion piece published by the Alaska Dispatch News and available here, Professors Rachel VanLandingham and Joshua Kastenberg (both retired Air Force Lieutenant Colonels and former Air Force military judges) call for the complete dismissal of the charges against Sergeant Bergdahl (CAAFlog news page) because:
On the campaign trail, then-candidate Trump repeatedly, and publicly, condemned Bergdahl as a traitor, and variously called for his execution by firing squad and by being pushed out of an airplane. This was not a one-off event; candidate Trump made his conclusion that Bergdahl is a traitor and should be executed a campaign meme, returning over and over to the same rhetoric.
Trump has never disavowed these comments. While it is true he hasn’t repeated them in the few short months he’s been in office, that’s because he doesn’t have to -– he knows he has already sent a very loud, very clear and very powerful message to his military subordinates (many of whom voted for him) he wants Bergdahl convicted and given the harshest punishment possible.
They echo the oft-repeated claim of Bergdahl’s defense counsel that the President’s campaign-trail comments are unlawful command influence so severe that it can’t be remedied. That claim is the subject of a seventh petition for extraordinary relief currently pending before CAAF (noted here) (pleadings available here).
While Professors VanLandingham and Kastenberg argue that the continued prosecution of Bergdahl risks “the fairness, credibility and integrity of the military justice system,” I believe that the danger to military justice is in dismissal, not continued prosecution.
Dismissal would, as I explained here, result in Sergeant Bergdahl’s honorable discharge from the Army, and it would also guarantee him other benefits in connection with his alleged desertion (and subsequent capture by the Taliban); an offense that, as I explained here, it seems Bergdahl confessed to committing. Bergdahl also engaged in a dialogue with filmmaker Mark Boal that resulted in roughly 25 hours of tape, and Bergdahl allowed the Serial podcast to use those recordings (according to the Serial podcast; link to episode transcript). Those recordings contain more damaging admissions and other aggravating evidence (some discussion here), and their publication is likely far more damaging to Bergdahl than anything said on the campaign trail.
Dismissal is a remedy for unlawful command influence, but it’s the most extreme remedy and it means that Bergdahl could never receive a fair trial in the wake of Trump’s pre-election comments. Getting a fair trial may be harder than it would have been before the comments – or it could be easier if the court-martial members think the comments were inappropriate and hold them against the prosecution – but there’s no evidence that a fair trial is impossible.
Professors VanLandingham and Kastenberg also lash out at their Army colleagues:
Bergdahl’s defense has already tried to get this case dismissed on these grounds. However, not surprisingly, the military judge and Army appellate court (also consisting of active-duty military members) have declined to cross their commander-in-chief in that manner.
I think this is a foul blow. There’s absolutely no evidence that the military judge (Colonel Jeffrey Nance) or the multiple appellate military judges who have considered this issue are the slightest bit afraid to correct injustice when they see it. Rather – as I noted here in the context of comments by Senator McCain that Bergdahl also tried to use to win a dismissal – the reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army trial and appellate military judges in the face of any kind of improper influence. VanLandingham and Kastenberg must have a remarkably dim view of the Army’s Judge Advocate General’s Corps.
The credibility of the military justice system is founded in its systemic ability to do justice, not in the result of one particular (and factually and emotionally thorny) case. If those championing dismissal of the charges against Bergdahl really believe that the trial military judge and the Army CCA are incapable of remedying unlawful command influence committed by a presidential candidate who subsequently gets elected, then the damage to the military justice system is already done.
There is significant evidence that Bergdahl committed multiple offenses in departing and staying away from his combat outpost, and many of his fellow soldiers suffered as a result. That Bergdahl spent five years in captivity is a mitigating factor for sure, but it’s one that must be considered in context with the other facts of the case.
The appropriate place for that to occur in the first instance is neither the court of public opinion nor the appellate courtroom; it’s a court-martial.