U.S. Army Forces Command's Gen. Robert Abrams burned evidence in the case for Sgt. Bowe Bergdahl -- a revelation discovered in an interview with the defense lawyers earlier this week, pushing the lawyers to file a motion to disqualify Abrams.
"Gen. Abrams' inexcusable and baffling conduct plainly disqualifies him from serving as a (convening authority) and requires that the referral be vacated so some officer who will take the time to read defense submissions and not destroy evidence can function on Lt. Col. (Mark) Visger's measured report," according to the motion filed by the defense on Friday.
Lawyers for Bergdahl filed the motion arguing that Abrams should be disqualified as the convening authority, which referred the case to court-martial earlier this year, because he was significantly involved with Bergdahl's case before referral, declined to read comments from Visger's report recommending no jail time and burned letters that could have been relevant in the sentencing phase. The lawyers want Abrams' referral to be vacated and an officer who has not had previous involvement in Bergdahl's case to make a fresh decision on disposition.
Paul Boyce, spokesman for Abrams, didn't comment specifically on the motion, but said it is part of a series of legal motions in Bergdahl's court-martial that will take place at Fort Bragg, N.C.
"We continue to maintain careful respect for the military judicial process, the rights of the accused and ensuring the case's fairness and impartiality during this ongoing legal case," Boyce said.
Bergdahl is charged with desertion with intent to shirk important or hazardous duty and misbehavior before the enemy by endangering the safety of a command, unit or place.
The court-martial was initially scheduled to begin this past Monday, but it was pushed back to Feb. 6 during a motions hearing in May. Officials said the court-martial is expected to last two weeks.
The defense team requested an interview with Abrams on June 16, but a few days later was told by a staff judge advocate that Abrams had declined.
The defense lawyers secured an interview with Abrams on Monday, about a month after Col. Jeffery Nance, the military judge overseeing Bergdahl's case, urged Abrams to comply for an interview.
The interview lasted about an hour. It was unsworn and not recorded, according to the defense.
From the interview, the defense gleaned information that Abrams had been participating in briefs regarding Bergdahl, including advising rescue efforts of Bergdahl, long before he was appointed as the commanding general of U.S. Army Forces Command.
Abrams, who was briefed about Bergdahl in his capacity as commander of the International Security Assistance Force-Regional Command South in 2012, was appointed to Forces Command in August 2015. He referred the case to court-martial in December 2015.
"Gen. Abrams' pre-FORSCOM involvement in pertinent events and access to information makes him a fact witness and disqualifies him from acting as a convening authority," according to the defense's motion. "Someone in authority should have thought of this before he was picked to relieve Gen. (Mark) Milley as FORSCOM commander and thereby succeed him as convening authority."
The defense team also argued that before he recommended the case for court-martial, Abrams didn't read objections and comments from Visger's report, which said jail time would be inappropriate for Bergdahl.
Finally, the defense team said Abrams destroyed evidence when he burned more than 100 letters he received from members of the public regarding the case. The letters could have been relevant in the sentencing phase of the court-martial and should not have been burned, according to the defense's motion.
Last week, the lawyers asked for oral arguments to show how they believe Sen. John McCain, chairman of the Senate Armed Services Committee, meddled with the case so much that Bergdahl can't receive a fair trial. They asked the judge to remove the case from the court calendar or, if he won't remove it, to limit Bergdahl's sentence to "no punishment."
McCain has repeatedly made comments about the case and indicated that if the military justice system doesn't punish Bergdahl, the committee will hold a hearing. One of Bergdahl's lawyers, Eugene R. Fidell, has accused McCain of exerting "congressional influence" in the case.
Both motions are scheduled to be discussed during the next preliminary hearing at Fort Bragg on Aug. 22.
Bergdahl walked off a remote post in Afghanistan in 2009 and was subsequently held by the Taliban for nearly five years. He was released in May 2014 in exchange for prisoners being held at the U.S. military prison at Guantanamo Bay.
He has said he walked off his base to catch the attention of military brass. He wanted to warn them about what he believed were serious problems with leadership in his unit.