French Prime Minister Georges Clemenceau recognized that, “Military justice is to justice what military music is to music.”
Exemplary is the Sept. 28, 2016 opinion of Col. Jeffrey R. Nance, Military Judge, denying Sgt. Robert B. Bergdahl’s motion to dismiss general court-martial charges of desertion and misbehavior before the enemy because of prejudicial statements made by Sen. John McCain, including veiled threats to retaliate if Bergdahl is not convicted and punished.
On or about June 30, 2009, Bergdahl went missing from his unit while deployed to Afghanistan. Numerous efforts were made by multiple government entities to locate and recover Bergdahl. On May 31, 2014, the United States swapped five Taliban detainees held at Guantanamo Bay for Bergdahl. (The GAO found that the exchange violated a legal mandate to notify Congress in advance of the release of Gitmo detainees).
On March 25, 2015, charges of desertion and misbehavior before the enemy in violation of Articles 85 and 99 of the Uniform Code of Military Justice were preferred against the accused. On October 5, 2015, following an Article 32 preliminary hearing, officer LTC Mark Visgar submitted his report and recommendations to the Special Court-martial Convening Authority. He urged referral of the charges to a Special Court-martial without authority to adjudge a Bad Conduct Discharge. He opined that Bergdahl deserved neither confinement nor a punitive discharge.
Senator McCain, Chairman of the Senate Armed Services Committee (SASC), fumed when he learned of LTC Visgar’s recommendation. On October 11, 2015, while campaigning with then presidential candidate Lindsey Graham, a fellow member of the SASCS, Senator McCain vowed to a reporter:
“[I]f it comes out that [Bergdahl] has no punishment, we’re going to have a hearing in the Senate Armed Services Committee…And I am not prejudging, OK, but it is well known that in 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, We need to have a hearing on that.”
On December 14, 2015, General Abrams referred the charges against Bergdahl to General Court-martial.
Senator McCain has never retracted his condemnation of Bergdahl as a deserter. He has never backtracked from his threat to summon the Army for hearings before the Senate Armed Services Committee if Bergdahl has no punishment.
In these circumstances, it is clear as day that Senator McCain has shattered any possibility that Bergdahl could be provided General Court-martial trial consistent with constitutional due process.
The United States Supreme Court elaborated in Offutt v. United States, 348 U.S. 11 (1954) that justice requires the appearance of justice, i.e., like Caesar’s wife, justice must be above suspicion.
Senator McCain has single-handedly created the appearance that the Bergdahl’s military tribunal will be biased against him to avoid the substantial risk of McCain’s retaliation. The Senator has maligned him as a deserter. He has fumed at the prospect that Bergdahl might receive no punishment. It is well known—including among uniformed military judges— that the pugilistic Senator McCain could retaliate if Bergdahl is not punished by using the Senate’s confirmation authority and his Chairmanship of the SASC to scuttle nominations or promotions, torpedo weapons systems, and shipwreck desired legislation. He could also call defense contractors like Boeing, Raytheon, Lockheed Martin, or Northrup Grumman to end the notorious and lucrative revolving door between senior defense officials and the trillion dollar military-industrial complex. That is why when Senator McCain tells the Pentagon to jump, the typical ingratiating response is “how high?”
Judge Nance obtusely maintained that the military would be indifferent to Senator McCain’s views or threats—despite his ability to cripple or destroy careers—because he exercises no command authority over military members. No less outlandish was the Military Judge’s assertion that no reasonable member of the public would believe that the military would bow to Senator McCain’s wishes because he cannot order soldiers into battle. He can only thwart their professional ambitions or block rich consulting agreements with defense contractors.
Judge Nance’s counter-factual diminishment of Senator McCain’s influence over the Pentagon to avoid derailing the prosecution of Bergdahl and risking a Mt. Vesuvius-like eruption from the Chairman of the SASC proves exactly what Bergdahl contended in his motion: namely, that uniformed military judges are swayed by Senator McCain’s statements or threats.
The Supreme Court taught in Tumey v. Ohio, 273 U.S. 510 (1927) that due process requires judges shielded from any “possible temptation…not to hold the balance nice, clear and true between the State and the accused.” In SGT Bergdahl’s case, such balance is impossible because Senator McCain’s Sword of Damocles hangs over the Army ready to be dropped if the accused is not convicted and punished.
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