More than a decade after Bowe Bergdahl first walked off his post in Paktika Province, his case is still under review in military courts. His latest appeal, which he lost 2-1 in the Army Court of Criminal Appeals, focused almost entirely on Donald Trump.
The military justice system fiercely guards the independence of courts-martial. Service members retain their rights to due process, so unbiased military courts have to exist outside and independent of the normal, hierarchical chain of command. Military courts bristle at any indication of unlawful command influence, in which a superior officer or civilian unfairly biases (or tries to bias) a court-martial.
That’s exactly what Bergdahl accused Trump of doing.
Bergdahl was captured by the Taliban shortly after leaving his post in June 2009, triggering what the Army judges called “a massive manhunt” involving “thousands of soldiers, sailors, airmen, marines, and civilians” who “scoured Afghanistan, delaying and deferring other operations and turning air, ground, and electronic assets to the task of finding [Bergdahl].” The Taliban held him as a prisoner for five years before returning him to the Army in May 2014, in exchange for five high-value Taliban detainees then being held at Guantanamo Bay. After a review of his desertion, the Army court-martialed him in March 2015, with pretrial hearings starting about the same time that Trump launched his campaign.
During and after his trial, Bergdahl argued that Trump, first as a candidate and then as president, exerted unlawful command influence on his trial three times. The first was long riff by Trump on the campaign trail:
It’s like Sergeant Bergdahl, right? So we trade a dirty rotten traitor, where five or maybe even six people were killed when he deserted and we knew that they were killed and we knew he was a traitor. We trade five or six of the greatest killers in the Middle East. The five people that we wanted most. That’s our deal. So we get a traitor. And they get five people that are right not, most of them, already back on the battlefields trying to kill everybody including us…
So we get this dirty, rotten, no-good traitor who 20 years ago would’ve been shot, who 40 years ago they would’ve done it within the first hour, and who now might not, maybe nothing’s going to happen. Don’t forget, with Bergdahl we lost at least five people and I watched the parents on television, I’ve seen the parents, I’ve met one of the parents, who’re devastated, ruined, destroyed. And they were killed going out to try and bring him back, and they lost five people, probably six, by the way. But at least five people. And we knew that he was a traitor because we had a Colonel and a General go and do the interviews before we made the deal. And everybody in the platoon, everybody was saying he walked off, he’s a traitor. They said he’s a whack job but we made this deal knowing. Now I would’ve said ‘Oh really? He’s a traitor? Pass! Let ’em have him, he’s done.’ Frankly, frankly, I would take that son of a bitch, I’d fly him back, I’d drop him right over the top, I’m telling you. I’m telling you.
(The court observed that “The government produced no evidence that anyone was ever killed searching for [Bergdahl]. The record indicates that there were several individuals injured, including serious injuries, while on missions whose primary purpose was to locate appellant, but no deaths were attributed to these missions.”)
The court affirmed the trial judge’s ruling, that while Trump’s tirade was “troubling… disturbing and disappointing,” it didn’t contribute to unlawful command influence because candidate Trump wasn’t yet part of the chain of command.
Then Trump tried to get cute, telling reporters in October 2017, just before Bergdahl’s sentencing, “Well, I can’t comment on Bowe Bergdahl because he’s—as you know, they’re—I guess he’s doing something today, as we know. And he’s also—they’re setting up sentencing, so I’m not going to comment on him. But I think people have heard my comments in the past.”
Bergdahl again complained of unlawful command influence, arguing that President Trump, as commander in chief, had “ratified” his campaign-trail rhetoric. That was enough for the trial judge to call foul. The appellate court disagreed, though only because the original comments were “removed in time” from Bergdahl’s sentencing and “lessened by the remoteness,” and because the officers in charge of the court-martial signed affidavits promising not to be swayed by the president.
On November 3, 2017, Bergdahl was sentenced to dishonorable discharge, kicked from sergeant to private, and fined $1,000 from his pay for 10 months, with no jail time. Per military justice, the discharge was automatically appealed, meaning the trial still wasn’t completely over.
That didn’t stop Trump from tweeting, “The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military.”
Not surprisingly, Bergdahl raised a third complaint of unlawful command influence. The appeals court found evidence of unlawful command influence, but not enough to overturn the original sentence. Part of the court’s logic rested on a statement by the trial judge, who chose to take Sarah Huckabee Sanders’s backtrack of the president’s tweet more seriously than Trump’s original comments: “[T]he statement by the President through his press secretary makes clear that he does not expect any certain sentence in this case.”
The decision to take a press release as more indicative of the president’s thinking than his Twitter account was given no explanation.
The majority of the appellate court also considered whether Trump’s statements, taken in totality rather than individually, could constitute a pattern of unlawful command influence. With hardly any explanation, they came up with… No.
For now, Bergdahl’s sentence stands. Until Trump tweets again.
It’s hard to come up with an exhaustive list of everything wrong with this case. Bergdahl’s name ought to be Mudd for deserting his post, but only after his fair conviction in a court. Legal niceties aside, Americans were probably right to be shocked that a man who needlessly endangered so many of his brothers in arms—some of whom paid a very high price trying to find him—won’t spend a day behind bars. President Obama’s critics were correct to point out that the Bergdahl-Taliban Five swap was an invitation to kidnap American servicemen all over the world, and may even have been a pretext to empty Guantanamo Bay.
But also, the president of the United States shouldn’t comment on ongoing cases before the courts, whether military or civilian. He shouldn’t have called Bergdahl a traitor any more than he should have called Judge Curiel a Mexican.
Add this case to the list of outrages Trump has railed against and then expanded. Add this case to the list of quandaries he’s created for judges, bureaucrats, and even his own appointees by refusing to control his speech, both in person and on Twitter. Add this case to the list of norms that judges and civil servants have upheld against Trump’s destructive tantrums.