The following op-ed appeared in the New York Times. Colonel Morris Davis discusses the repercussions of Senator John McCain’s meddling in military justice.
Sgt. Bowe Bergdahl is to appear this month at the next hearing in his court-martial at Fort Bragg, N.C. After Sergeant Bergdahl walked off his Army outpost in Afghanistan in 2009, he was abducted and tortured by the Taliban, who subjected him to nearly five years of harsh captivity.Sergeant Bergdahl faces charges of desertion and misbehavior before the enemy, yet two senior military officers conducting separate, impartial investigations into his case have recommended no imprisonment. That outcome would be consistent with hundreds of other post-Sept. 11 desertion cases.
But that does not sit well with certain politicians who have treated Sergeant Bergdahl’s case as if it were a political piñata. Foremost among them is Senator John McCain of Arizona, chairman of the Senate Armed Services Committee.
In March 2015, the Army warned the committee that holding any congressional hearing on Sergeant Bergdahl could undermine military justice. Two months later, after a senior McCain staff member raised the prospect of the senator’s doing just that, an Army official repeated the warning against holding such a hearing. “To do so,” he added, “would be unprecedented and deviate from defense oversight committees’ longstanding practice of deference to allow ongoing military justice matters to proceed to completion without direct congressional involvement.”
Yet, in October, just after the second investigator made his recommendation of no imprisonment, Mr. McCain said, “If it comes out that he has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee.”Mr. McCain also declared that Sergeant Bergdahl was “clearly a deserter.” Such prejudgment of Sergeant Bergdahl’s case is only slightly less alarming than the statements of the Republican presidential nominee (and potential commander in chief) Donald J. Trump. He has said repeatedly that Sergeant Bergdahl is “a no-good traitor” who would have been executed 30 years ago.
The day after the senator’s statement, the Army asked that Mr. McCain make an announcement that would mitigate the appearance of improper influence on the military justice process. The Army even offered to assist in drafting it, but Mr. McCain stonewalled. Two months later, Gen. Robert B. Abrams, ignoring the advice of the investigative officers, sent the case to a court-martial, where Sergeant Bergdahl faces the possibility of life imprisonment — a punishment that presumably Mr. McCain would view favorably.
I was a chief prosecutor for the military commissions that President George W. Bush created to try terrorism suspects for war crimes. Senator McCain was the lead architect of legislation that revived the commissions after a Supreme Court ruling struck them down in 2006.
I had a meeting with Mr. McCain on Sept. 7, 2006, the day after President Bush announced that he had transferred the Sept. 11 mastermind Khalid Shaikh Mohammed and other high-value detainees to Guantánamo Bay to stand trial. The senator asked me, “What do you need to get the job done right?”
I told him that a lot of people were trying to interfere with the course of military justice, and what I needed most was to ensure that the process was insulated from political meddling. Mr. McCain asked me to draft language to prevent outsider interference. Section 949b of the Military Commissions Act of 2006 is the provision that I wrote — and which Senator McCain adopted verbatim: “No person may attempt to coerce or, by any unauthorized means, influence the action of a military commission.”
The Bergdahl defense team has obtained emails between the Pentagon and congressional staff members showing Mr. McCain’s continual prodding of the Army about the case. That kind of involvement is inappropriate from any member of Congress, but it is especially egregious for the chairman of the Senate Armed Services Committee, since his committee has power over appointments to top Pentagon posts as well as military officer promotions.
As a result of Mr. McCain’s repeated attempts to put his thumb on the scales of justice, Sergeant Bergdahl’s lawyers have filed a motion to dismiss the charges against him or to limit his sentence to no punishment.
The Army deserves credit for recognizing the corrosive power of improper influence, and it must now send a clear message that partisan politics holds no sway over military justice. The Army should also approve the request by Sergeant Bergdahl’s lawyer.
The integrity of the military justice system must outweigh the pandering of politicians. Senator McCain should give Sergeant Bergdahl the same protection from meddling he afforded Khalid Shaikh Mohammed.
Many in the military feel that Bergdahl should face a heavy penalty, but this appears as if constant inquiries are going to prevent that. If this happens, I’m shaking my head thinking that somehow this’ll be the fault of POTUS 44.
Col. Davis,
While I respect your qualified and learned point-of-view, I disagree that this should be an administrative/Article 15 action, if I am reading your comments correctly. I will concede that you are tremendously more versed in the nuances of the UCMJ, being a JAG. I was an unrestricted line officer, and received the basic instruction given to all officers regarding the UCMJ and Law of War. However, I was assigned 5 investigations (consequence of doing a good job the first time) as a lowly 2ndLt. (1 found no misconduct, 1 resulted in NJP, 2 went to Summary, and 1 went to Special) and I also twice served as a Summary Courts-Martial officer (Cases where an offense was committed against a Japanese National).
There are facts here that are not in dispute: Bergdahl intentionally absented himself, abandoned his post, in the face of the enemy. While he may have been prevented from returning to his post by his captors, and thus the charge of “desertion” might be successfully argued against, he did in fact absent himself from his appointed place of duty, which became the proximate cause of his subsequent captivity. The penalties are quite clear. While there may be facts in mitigation, these can only be considered at a Court-Martial.
That said, from what I know of the case, I don’t see him doing anything traitorous, as in providing aid and comfort to the enemy by his own free will, nor is there any evidence that he took up arms against US forces.
Send him to a Summary Court, which would be the proper level to try an AWOL case occurring in a combat-zone, considering the rank he was when he went AWOL, rather than the rank he achieved while captive. You know the max-penalties are pretty light, when compared to a Special or General. Assign the appropriate punishment, and then administratively separate Bergdahl with a General discharge and bad re-enlistment code.
As far as McCain’s crusade against Bergdahl, I agree. This is a case for military justice, and military justice alone.
+1.
But if a Congressman were not able to meddle into something he should stay out of – what would they be doing….
Excellent critique Colonel Davis. Those not privy to the facts, the context or the process should let Military Justice play out.
It’s time for John McCain to leave the Senate. As a fellow vet, I respect his service. As an American citizen, I question his judgment and ability to lead.
Hand salute Sir!