Bowe Bergdahl’s last-minute ‘Hail Mary’ should be dead on arrival

Sergeant Bowe Bergdahl, the infamous U.S. soldier who wandered away from his base during combat missions in Afghanistan in 2009 and ended up in Taliban hands, pled guilty to desertion and misbehavior before the enemy last week. Sentencing gets underway this week and the military judge, alone, will decide his fate.

While Bergdahl faces a potential life sentence, the death penalty is off the table. That’s because, for unknown reasons, prosecutors charged Bergdahl as if he deserted during peacetime. Nothing could be further from the truth. He deserted, under suspicious circumstances, in war-torn Afghanistan and quickly became a Taliban captive. Fellow soldiers risked their lives and spent years searching for him. The search missions came with a high price-tag. One soldier was shot in the head and is forever wheelchair bound as a result.

{mosads}The Uniform Code of Military Justice reasonably allows for the death penalty in wartime desertion cases. Wartime desertion entirely disrupts military missions, puts our secrets at risk when soldiers are in the field, and people die. Soldiers need to know if they run away from battle, when everyone else is running toward it, the consequences will be significant. Otherwise, what’s to stop soldiers from deserting instead of storming the beach? It’s a serious crime with serious consequences.

Bowe Bergdahl’s sentencing hearing for desertion charges is delayed https://t.co/ms1q0T69iR pic.twitter.com/gHfwgLJQYd

— The Hill (@thehill) October 23, 2017

Comments by President Trump are at the center of Bergdahl’s case. Though Bergdahl has already pled guilty and awaits the sentencing hearing, his lawyers now assert that his case should be dismissed. They claim that Bergdahl cannot get a fair hearing due to “unlawful command influence” — a military law that prohibits commanders from attempting to influence military trials.

They tried that approach earlier, without success. Although Trump had called Bergdahl a “traitor” and said he should be executed, the judge was unmoved because Trump was merely a candidate when he made those comments. Presidents are subject to unlawful command influence; candidates are not. They’re civilians who don’t yet — and may never — command anything.

Last Tuesday, President Trump referenced, but did not repeat, his earlier remarks about Bergdahl. Now, Bergdahl’s lawyers are up in arms, claiming that referencing earlier comments is tantamount to making them now. They think Trump’s reference makes him subject to unlawful command provisions. They’re seeking a dismissal, which would set their client free.

Do President Trump’s comments complicate matters? Yes. Should he hold his tongue in the future? Definitely. But even if the judge finds that President Trump’s comments made as a candidate amounted to unlawful command influence, the comments are unlikely to impact the outcome of this case.

#BREAKING: Army Sgt. Bowe Bergdahl expected to plead guilty to desertion, misbehavior before the enemy: report https://t.co/jhTdshEYy7 pic.twitter.com/By6BeIgTe3

— The Hill (@thehill) October 6, 2017

Looking at recent cases puts this one in context. In 2013, a military judge in Hawaii found that President Obama committed unlawful command influence when he commented about sexual assault cases then underway. His remarks were specific and he was the commander-in-chief when he made them. He said, “I have no tolerance for this … I expect consequences” and called for people engaged in sexual assault to be “prosecuted, stripped of positions, courts-martialed, fired and receive a dishonorable discharge.”

The laundry list of penalties he demanded reads like a direct order. It’s specific. It’s detailed. It’s directive. To cure the problem, the judge insulated defendants from receiving the penalties listed out by President Obama.  

In this case, the curative instruction would involve removing the death penalty as an option. But, prosecutors have already done that, all on their own. Their failure to seek the death penalty renders President’s Trump’s comments inapplicable. He’s called for execution. But, the death penalty is not even on the table — and hasn’t been from the get-go.  

Furthermore, this is not a jury trial. It’s a bench trial, and the decision rests entirely with one judge. It is true that the law protects judges from unlawful command influence too.  But, in this case, the judge has already decided that President Trump’s campaign-era remarks don’t amount to unlawful command influence. If he reverses himself, based on Trump’s recent remarks, the case boils down to whether the judge was prejudiced by Trump’s comments.

But, in any event, the proper remedy is not dismissal — it is recusal. If the judge decides he cannot be fair, he could reasonably recuse himself and step aside, instead of letting Bergdahl off scot-free.

Prohibitions against unlawful command influence are intended to protect the sanctity and independence of the military trials.  Rules prohibiting unlawful command influence ensure that commanders don’t interfere with military trials. They’re not show-trials and soldiers, regardless of the charge, are entitled to due process and fair trials. But, in this case, Bergdahl’s claims are a last ditch attempt at dismissal — a Bergdahl Hail Mary.

Kyndra Rotunda is a professor of Military & International Law at Chapman University, former Army JAG Officer, Gitmo prosecutor, and author of several military law books including “Honor Bound: Inside the Guantanamo Trials.”