The Court of Appeals for the Armed Forces Rules Against Sergeant Bergdahl

The Court of Appeals for the Armed Forces issued its decision in Sergeant Bowe Bergdahl’s case last week. CAAF found by a 3-2 vote President Trump’s and Senator McCain’s comments did not place an intolerable strain on the military justice system, and it upheld his sentence.

CAAF explained that when an Appellant alleges the appearance of unlawful command influence (UCI), and not actual UCI, the Court engages in a multi-step analysis where Appellant must first show some evidence of UCI. If he makes that showing, the government then must establish, beyond a reasonable doubt, the predicate facts proffered by Appellant do not exist or these facts do not constitute UCI. If the government has failed to satisfy this burden, it must prove beyond a reasonable doubt that the UCI did not place an intolerable strain upon the public’s perception of the military justice system, and a disinterested observer would not harbor a significant doubt about the fairness of the proceeding.

Of note, CAAF’s decision that there was not an intolerable strain on the military justice system implicitly found SGT Bergdahl satisfied the other steps. So Senator McCain’s and President Trumps comments constituted UCI. Senator McCain stated before trial that if Sergeant Bergdahl was not punished at court-martial, then he would hold a hearing of the Senate Armed Services Committee. And President Trump comments while he campaigned for the job, where he called SGT Bergdahl a traitor who deserved to be dropped by helicopter back to the Taliban, became UCI after President Trump assumed office and later ratified those remarks.

The Court’s opinion finding that the UCI did not place an intolerable strain on the perception of the military justice system relied on a variety of factors. The most salient appear to be SGT Bergdahl’s guilty plea, the severity of the offenses he pleaded guilty to, and the casualties suffered by those attempting to rescue him. The Court thus found the public would find SGT Bergdahl received a fair sentence given the extent of his misconduct.

The two dissents argued the unprecedented invocation by name of a single accused by two powerful civilians with the power to influence the court-martial process, was so egregious that a disinterested observer would harbor a significant doubt on the fairness of the proceedings.

Both the majority and dissenters found SGT Bergdahl suffered extreme hardship at the hands of the Taliban, and he had mental health issues before he joined the Army that may have contributed to his decision to abandon his post on the day of his desertion. When SGT Bergdahl was discharged from the Coast Guard, they noted he should not be admitted into the military unless it can be shown his mental health issues have been properly treated. Those issues do not appear to have been treated, yet SGT Bergdahl obtained the rank of E-5, supervising other Soldiers in the U.S Army, before traversing through hostile territory for an ill-conceived purpose.

The purpose of this post is to summarize the decision from last week. I hope to have another post on this case in the next few days whereby I will argue CAAF made the wrong decision.

Categories: Military Justice