WASHINGTON – An Army judge is expected to decide Monday whether accused deserter Sgt. Bowe Bergdahl's case was improperly influenced by a powerful senator or whether the four-star commander overseeing it must be dismissed.
In separate motions filed in recent weeks, Bergdahl's attorneys have asked the judge, Col. Jeffery R. Nance, to remove the case from the docket until prosecutors can finish vetting a massive cache of classified information and dismiss the court-martial's convening authority, Army Gen. Robert Abrams, because of his prior knowledge of the case and their allegations that he destroyed evidence. They have also requested the charges be dismissed against Bergdahl because of comments made by Sen. John McCain, R-Ariz., that they argue violated their client's right to due process.
Those issues are expected to be argued Monday in court, when Bergdahl returns to a Fort Bragg courtroom in North Carolina.
If Nance rules in Bergdahl's favor on any of those issues, it will likely delay the trial, which is scheduled for February.
Bergdahl, 30, faces charges of desertion and misbehavior before the enemy for walking off his small post in eastern Afghanistan in June 2009. He was captured by Taliban fighters and was held for five years in Pakistan before he was freed in a controversial prisoner-swap in May 2014.
It is unlikely that Nance would rule to dismiss the case altogether, said Eric Carpenter, an assistant law professor at Florida International University and a former Army defense attorney and prosecutor. But the allegations that McCain improperly meddled in the case are "serious," he said.
In October, McCain told reporters that the Senate Armed Services Committee, of which he is the chairman, would hold a hearing if Bergdahl is not punished. The committee is responsible for confirming presidential appointments of the Pentagon's senior military commanders and its top civilians, among other obligations. The chairman of the committee, Bergdahl's attorneys wrote in the motion filed Aug. 1, "wields great power of SASC decision making."
Abrams, the convening authority and commander of Army Forces Command, referred Bergdahl's charges to a felony-level, general court-martial in December.
It is possible, Carpenter said, that Abrams or future jurors, called panel members in military court, could have been influenced by a statement from such a powerful lawmaker.
"The convening authority and potential panel members might interpret those comments to mean that their promotions would be held up if Bergdahl is not punished," Carpenter said.
Abrams is likely to be required by Nance to testify about whether McCain's comments had any influence on his decision.
"If Gen. Abrams wasn't influenced, then the issue is over," Carpenter said.
If Abrams was influenced, Nance would likely rule that a new convening authority must be assigned to the case who would be required to make a new decision about whether Bergdahl should be prosecuted, he said.
But Berdahl's lawyers want Abrams removed from the case for another reason.
In a motion filed Aug. 12, the defense attorneys allege Abrams was too involved in the case in previous jobs to be impartial and contend his decision not to consider a list of defense attorneys' objections and comments about the case before referring it to a general court-martial show "disturbing evidence that he was not impartial or, in the alternative, that he could not be bothered to hear from the defense when exercising a critical quasi-judicial function."
Abrams, who previously served as the commander of Regional Command-South in Afghanistan while Bergdahl was a prisoner of war and later became the top military aide to the secretary of defense, would have had access to classified and unclassified information about the case before he became the convening authority, Bergdahl's lawyers argue.
But that is unlikely to be enough evidence to convince Nance that Abrams should be removed, Carpenter said. Military law dictates a convening authority can oversee a case as long as he was not personally connected to it.
"Gen. Abrams appears to have only had an official interest in the case," Carpenter said. "He learned things about the case before he became the convening authority, but unlike panel members or jurors, convening authorities are allowed to have outside, official knowledge of the case."
Bergdahl's attorneys had previously sought to have Gen. Mark Milley, Abrams' predecessor at Forces Command, removed from his role as convening authority when he was selected last year for promotion to Army chief of staff.
In the Aug. 12 motion, Bergdahl's lawyers accuse Abrams of destroying some 100 letters from the general public expressing support and disapproval of Bergdahl. The lawyers wrote Abrams on Aug. 8 admitted he burned the letters when they interviewed him.
The letters, Carpenter said, were likely burned with Abrams' outgoing trash, a normal security measure for general officers.
"For the defense to win, those positive letters must be of central importance to his sentencing, where no adequate substitute for them exists," Carpenter said. "The panel members probably would not think that random letters from the public are of central importance to their sentencing decision, and the defense can find other people to say those positive things."
Other defense motions filed recently ask Nance to order the government to provide them an expert consultant in forensic psychiatry and to exclude from trial evidence prosecutors want to present that Bergdahl attempted to join the French Foreign Legion, spent time on fishing boats and worked at a weapons range before enlisting in the Army.
Such activities, prosecutors argue in their response to the defense motion, show Bergdahl routinely sought out adventure, which he might have been chasing when he left Observation Post Mest in Paktika Province.
The soldier's attorneys argued such activities were "irrelevant to either charge."
Bergdahl has admitted to Army investigators that he willingly left the post before he was captured, but he said he did not intend to desert the Army. Instead, he said he wanted to cause a disturbance that would place him in front of military brass to file complaints about his chain of command.
Bergdahl remains on active duty in a desk job at Joint Base San Antonio in Texas. He was arraigned on charges of "misbehavior before the enemy by endangering the safety of a command, unit or place" and "desertion with intent to shirk important or hazardous duty" in December, but he has yet to enter a plea. The more serious misbehavior charge carries a potential life in prison sentence.