Bergdahl Attorney: Did Lawmakers Influence Court-Martial Decision?

In this file image taken from video obtained from Voice Of Jihad Website, which has been authenticated based on its contents and other AP reporting, Sgt. Bowe Bergdahl, right, stands with a Taliban fighter in eastern Afghanistan. (AP photo)

The attorney for accused Army deserter Sgt. Bowe Bergdahl is seeking all pertinent communications between members and staff of the Senate Armed Services Committee and the U.S. Army to determine if there has been undue pressure on the Army to put his client on trial.

Eugene Fidell requested any communications regarding Bergdahl in October under the Freedom of Information Act, following remarks by Sen. John McCain, R-Arizona, that Fidell says threatens Bergdahl's chance for a fair trial and also reveals the Senate Armed Services Committee has been conducting "longstanding oversight" of the case.

"It took the Army six weeks to acknowledge receiving my FOIA," he told Military.com on Tuesday. Fidell said he has not yet received any correspondence.

Any suggestion that the Army's decision to prosecute Bergdahl stemmed from congressional pressure is bound to be fodder for a defense move to drop the court-martial.

Bergdahl, who has admitted walking away from his base in Afghanistan in 2009, was returned to the U.S. by Taliban captors in May 2014 in a controversial prisoner swap that saw five senior Taliban leaders released from Guantanamo Bay detention to Qatar.

Bergdahl told investigators he intended to walk to another U.S. military base to report problems he believed put soldiers at risk, but was captured along the way.

Claims that other soldiers were killed while searching for him were dismissed by Army investigators.

The Army announced on Monday that it would try Bergdahl for desertion at a general court-martial, a decision contrary to the advice of the preliminary hearing officer who interviewed Bergdahl and other witnesses, Fidell said. The preliminary hearing officer, Lt. Col. Mark Visger, recommended in October that the charges against Bergdahl be referred to a special court-martial but that "a punitive discharge and confinement would be inappropriate given all the circumstances," Fidell told reporters at the time.

Fidell told Military.com on Tuesday that he was spurred to FOIA for any possible communications after McCain told reporters in New Hampshire Oct. 12 that "If it comes out that [Bergdahl] has no punishment, we're going to have to have a hearing in the Senate Armed Services Committee."

Additionally, a McCain spokesman issued a statement saying the committee, which is chaired by McCain, "will continue its longstanding oversight of the entire matter of Sergeant Bergdahl, not just his conduct, but also the administration policy that led to the release of five high-value Taliban detainees without congressional notification, as required by law."

Fidell said McCain's remark in New Hampshire threatens to prejudice the case against Bergdahl, while the statement issued by his committee "clearly indicates there has been 'longstanding [SASC] oversight' of the case against [Bergdahl], as the swap" that brought him home.

A recent report on the prisoner swap by the House Armed Services Committee also includes language indicating that House lawmakers are conducting oversight of the Army's judicial system, according to Fidell. Specifically, Fidell points to page 5 of the report, where it states "the Committee will ... remain abreast of the disciplinary process which is underway. The Committee will ensure that standard procedures are properly implemented and administered, and that Sgt. Bergdahl's behavior is adjudicated as required."

"They're talking about a disciplinary process in this particular case, not some generic oversight," Fidell said. "Clearly that's the gist of what they're saying. But HASC is not the Court of Appeals. They're laboring under a major and prejudicial misconception."

Senate and House lawmakers are not the only ones unfairly making a public case against Bergdahl, according to Fidell.

Real estate mogul and celebrity billionaire Donald Trump, the front-runner in the race to become the Republican Party's nominee for President in 2016, called Bergdahl a "dirty, rotten traitor" during a campaign stop in Massachusetts in November.

"What do we do with Sergeant Bergdahl, 50 years ago?" Trump asked the crowd, and then put up one hand like a pistol. "That's right. "Boom! Boom! ... He's gone!"

Fidell also included Trump in a statement he released on Monday after the Army announced it would court-martial Bergdahl.

"We again ask that Donald Trump cease his prejudicial months-long campaign of defamation against our client," Fidell said. "We also ask that the House and Senate Armed Services Committees avoid any further statements or actions that prejudice our client's right to a fair trial."

Bryant Jordan can be reached at bryant.jordan@military.com. Follow him on Twitter at @bryantjordan.

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