John McCain’s comments on Bergdahl case constitute unlawful Congressional interference in the UCMJ process

angry john mccainArizona’s angry old man, “Senator McNasty,” deems himself prosecutor, judge and jury in wanting to punish prisoner of war Sgt. Bowe Bergdahl for desertion.

So much for the fraternity of brothers in arms who have been prisoners of war. John McCain’s Comments on Bowe Bergdahl Bring Rebuke From Lawyer:

A day after the disclosure of an Army lawyer’s recommendation that Sgt. Bowe Bergdahl face neither jail time nor punitive discharge for walking off his Army outpost in Afghanistan in 2009, Senator John McCain, chairman of the committee that oversees promotions of senior military commanders, said that Sergeant Bergdahl was “clearly a deserter” and that he would convene a hearing if the sergeant was not punished.

Mr. McCain’s statement drew a sharp rebuke on Monday from Sergeant Bergdahl’s lawyer, partly because the four-star Army general who will ultimately decide the fate of Sergeant Bergdahl is considered likely someday to face a hearing for his next job before Mr. McCain’s committee. Sergeant Bergdahl’s lawyer, Eugene R. Fidell, accused Mr. McCain, Republican of Arizona, of improperly seeking to influence the outcome of a major military prosecution.

McCain made the comments in an interview with The Boston Herald on Sunday in Pelham, N.H., where he was campaigning on behalf of one of his top allies, Senator Lindsey Graham of South Carolina, a candidate for the Republican presidential nomination.

“If it comes out that he has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee,” the newspaper quoted Senator McCain as saying about Sergeant Bergdahl.

“And I am not prejudging, O.K., 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,” Mr. McCain told The Herald. “We need to have a hearing on that.”

Actually, no you don’t. The military has conducted its investigation and found no evidence to support McCain’s statements to The Herald.

Under military rules, Gen. Robert B. Abrams, the commander of Army Forces Command at Fort Bragg, N.C., will ultimately decide what charges the sergeant will face. General Abrams, who also has the power to vacate any eventual conviction against Sergeant Bergdahl, is seen inside the military as someone likely to be nominated for other commands, which would require approval from Mr. McCain’s committee.

Mr. Fidell said in an interview on Monday that Senator McCain’s comments in New Hampshire could influence how General Abrams and his advisers proceed and that the remarks might sway other people who could play a role in the case, including military jurors.

Senator McCain’s comments constitute unlawful congressional influence,” Mr. Fidell said in a filing on Monday before the Court of Appeals for the Armed Forces.

You may recall that a couple of years ago President Obama commented on a military sex abuse trial that resulted in a “U.S. Navy sailor accused of sexual assault and facing a UCMJ trial prevailing on a motion to throw out the possibility of a dishonorable discharge, because his court martial was tainted by undue command influence by the President of the United States. Military Court Rules Obama Exerted “Unlawful Command Influence” in UCMJ Sexual Assault Trial. While the president, as the civilian commander in chief of the Armed Forces, is not directly subject to the UCMJ, the judge in this case ruled that President Obama’s words constituted sufficient interference in the court martial proceedings that no sentence including a discharge could be trusted as free of undue influence.

The judge also referenced Congressional interference in the UCMJ process. Court martial convening authorities are, by law, supposed to operate free of command influence. Appeals courts have already repeatedly held that it is unlawful for a commander to “send word” of a desired case outcome to the members of a court martial. This would be a violation of Article 37 of the Uniform Code of Military Justice. This is to insulate UCMJ proceedings from political or unlawful command influence.

In an emailed statement, Dustin Walker, a spokesman for the Armed Services Committee, [tried to cover McCain’s ass] . . . “Chairman McCain,” the statement added, “wants the legal proceedings to run their course before making a determination how best to continue the committee’s oversight work.”

At a preliminary hearing last month in Texas, the Army’s investigating officer, Maj. Gen. Kenneth Dahl, testified that jail time for Sergeant Bergdahl would be “inappropriate” and that the investigation had found no evidence to support claims that the sergeant had intended to defect to the Taliban or that any soldiers had been killed while specifically searching for him. General Dahl also testified that Sergeant Bergdahl had not intended to leave permanently, but that he had planned to hike 18 miles to a larger military base to inform a senior commander of what he believed were serious leadership problems in his unit.

After that testimony, the independent Army lawyer who presided over the hearing, Lt. Col. Mark Visger, issued a recommendation that Sergeant Bergdahl face no jail time and no punitive discharge, according to Mr. Fidell. Army Forces Command officials have declined to comment on details of the case, saying they “continue to maintain careful respect for the military-judicial process, the rights of the accused, and ensuring the case’s fairness and impartiality.”

In other words, the military’s investigation blew up the heavily hyped and false conservative media entertainment complex story that Bowe Bergdahl was a deserter who joined the Taliban, so why did the U.S. swap Taliban prisoners for his release? “We should have left that stinking deserter to die in the hands of the Taliban!” You recall the vicious way in which the right-wing media demonized this prisoner of war.

Almost none of the talking heads in the conservative media entertainment complex have ever served in the military, so  they have no respect for the military tradition of Why we leave no man behind, especially when it suits their purpose of attacking President Obama.

Senator McNasty wants to keep this right-wing media trope alive because he has oft-repeated it, as he did to The Herald, to attack President Obama, the man who crushed his dreams of becoming president of the United States in a humiliating landslide defeat. This does not speak well of the temperament, character and judgment of this sore loser.

McCain’s comments on Bergdahl’s case constitute unlawful Congressional interference in the UCMJ process, and will almost certainly ensure that Bergdahl faces no punishment. Way to go, Johnny! The right-wing has you to thank for depriving them of their dream of destroying this prisoner of war.

The New York Times editorializes today, Mr. McCain’s Irresponsible Remarks About Sgt. Bergdahl:

Two military officers who have conducted lengthy reviews of the circumstances that led to the abduction of Sgt. Bowe Bergdahl in Afghanistan in 2009 have concluded that he should not face jail time for having left his base.

Senator John McCain, the chairman of the Armed Services Committee, however, seems to think he knows better. Mr. McCain, a Navy pilot who was held captive for five years during the Vietnam War and tortured, told The Boston Herald that Sergeant Bergdahl is “clearly a deserter,” and threatened to hold a congressional hearing into the case “if it comes out that he has no punishment.”

The Army’s decision to prosecute Sergeant Bergdahl for desertion and for violating rules that endangered his comrades was questionable, considering the abuse he suffered in captivity and the military’s failure to recognize that he was not mentally fit to be deployed to a war zone. During his five years as a Taliban hostage, Sergeant Bergdahl was beaten with chains and endured severe chronic diarrhea that went untreated.

While much of the nation was relieved to see Sergeant Bergdahl return home last year, Republicans have exploited the case to criticize President Obama for the prisoner swap he authorized to secure the soldier’s release. In exchange for his freedom, the Obama administration freed five Taliban prisoners who were being held at Guantánamo Bay, Cuba.

Mr. McCain is certainly not the first politician to have spoken irresponsibly about the case. . . But Mr. McCain’s remarks are particularly troubling because Gen. Robert Abrams, the top commander at Fort Bragg, N.C., who will make the final decision on the Bergdahl case, will most likely appear before Mr. McCain’s committee for confirmation should he be promoted to a higher post in the future.

General Abrams is expected to decide soon whether the case should go before a court-martial now that the military equivalent of a grand jury proceeding has concluded. He could decide to impose nonjudicial punishment or simply discharge him from the Army.

Mr. Bergdahl’s lawyer, Eugene Fidell, rightly protested that Mr. McCain’s remarks could constitute unlawful meddling by the legislative branch over a military prosecution. The senator should make it clear to General Abrams that he will respect his decision.

The Army, meanwhile, should waste no time in bringing this matter to a close, forgoing a court-martial, and allow Sergeant Bergdahl to get on with his life.

John McCain is a rank embarrassment to the state of Arizona. Arizona’s angry old man has to go.

3 responses to “John McCain’s comments on Bergdahl case constitute unlawful Congressional interference in the UCMJ process

  1. Did you even bother to read the linked NY Times article?

    “Senator McCain’s comments constitute unlawful congressional influence,” Mr. Fidell said in a filing on Monday before the Court of Appeals for the Armed Forces.

    I’m not saying it, Bergdahl’s lawyer is saying it in a pleading to the Court. I am not making anything up.

    • Was this addressed to me, AZbm? I am guessing it was so I will give a quick response.

      Mr. Fidell’s statement in filing before the Military Court of Appeals does NOT make it so. He is a lawyer and (as you should know) lawyers always overstate their case in the hopes their hyperbole will influence the final decision. Mr. Fidell can declare whatever he wants, there is no provision under Article 37 of the UCMJ discussing undue Congressional influence. It only addresses undue Command influence.

      I did read the article, but I must have read it differently than you did. I apologize for saying you made something up.

  2. Like the talking heads you disparage, you, too, have not served in the military. Yet you pontificate as if you know the difference between “Command influence” and “Congressional influence” under Article 37 of the UCMJ. President Obama DOES constitute Command influence as the Commander in Cheif.

    “Mr. Bergdahl’s lawyer, Eugene Fidell, rightly protested that Mr. McCain’s remarks could constitute unlawful meddling by the legislative branch over a military prosecution.”

    Notice how Mr. Fidell carefully said that McCain’s action “COULD” constitute unlawful meddling. He didn’t say it DID constitute unlawful meddling under Article 37, just that it could. Do you know why? Because there is no “Congressional influence” mentioned under Article 37. The UCMJ has no authority over Congress…it only has authority over the Military and the Chain of Command. McCain could only be held accountable for unlawful meddling under the United States Code.

    I dislike McCain as much as you do, but you don’t need to make things up to make him look bad.