RALEIGH, N.C. — Attorneys for Army Sgt. Bowe Bergdahl will try to convince a judge this week that the U.S. military has mishandled its prosecution of the soldier on charges that he deserted his post in Afghanistan.
Among the issues being considered during pretrial hearings is whether Gen. Robert B. Abrams faced improper conflicts when he referred Bergdahl for a general court-martial rather than a lower-level prosecution.
Defense attorneys argue that Abrams, the commanding general of U.S. Army Forces Command in Fort Bragg, North Carolina, should be disqualified from the case because of a prior role advising former Defense Secretary Chuck Hagel during efforts to return Bergdahl from captivity. In a separate motion, the defense contends Abrams was influenced by negative comments about Bergdahl by Sen. John McCain, chairman of the Senate Armed Services Committee.
In September 2015, an officer who oversaw a preliminary hearing recommended the case be heard by a misdemeanor-level tribunal and said imprisonment wasn't warranted. However, the following month, McCain told a reporter his Senate committee would itself hold a hearing if Bergdahl weren't punished. In December, Abrams sent Bergdahl's case to a general court-martial, rejecting the hearing officer's recommendation.
The defense argues the chain of events shows "impermissible meddling" by McCain and says either the charges should be thrown out, or Bergdahl should face no punishment if convicted. In their motion to disqualify Abrams, they argue for a reset in the case that would allow another commander to decide whether it warrants a general court-martial.
Bergdahl, who is from Hailey, Idaho, walked off his post in Afghanistan in 2009 and wound up as a captive of the Taliban and its allies until 2014. The Obama administration won his release by swapping him for Guantanamo Bay detainees. Bergdahl faces a court-martial on charges of desertion and misbehavior before the enemy. The latter charge carries up to a life sentence.
Legal experts have described the defense motions — which will be heard starting Monday in a Fort Bragg courtroom — as longshots. But Eric Carpenter, a former Army lawyer who teaches at Florida International University, said testimony from Abrams could provide courtroom fireworks.
"The military judge will likely need to hear from General Abrams himself, either in person or in writing, about whether Abrams was influenced by McCain's comments," he said, adding Abrams should be able to resolve the issue simply by saying that McCain's statement didn't affect him.
Prosecutors strongly deny the arguments pertaining to McCain and say the defense is asking the military judge to make an "unprecedented" decision.
"The Defense motion seeks to have the Court boldly go where no court has gone before. There simply is no legal principle as Unlawful Congressional influence," Maj. Justin Oshana, a prosecutor, wrote.
In a legal filing Friday, prosecutors also argue that Abrams' role in advising Hagel didn't amount to planning or participating in efforts to free Bergdahl from captivity.
Still, Carpenter said the arguments aren't surprising in the adversarial world of high-profile military cases, adding that he expects the defense to file dozens more motions before the trial starts.
"At this stage, the defense will be challenging all of the people and procedures that got the case to trial," said Carpenter, who served as both an Army prosecutor and defense attorney.
Prosecutors also claimed in a legal filing this month that Bergdahl told a fellow soldier shortly before he disappeared that he wanted to hike through India and Pakistan to join the Russian mob. In a sworn statement from 2014, Shane Cross said that "leading up to his disappearance our conversations became focused on his fantasy of being in the Russian mob as a Hitman or Assassin."
The military judge overseeing the case, Col. Jeffery Nance, will also have to consider whether the case can proceed on schedule despite concerns by defense attorneys over the pace at which prosecutors are turning over classified documents. The judge told both sides in late July that they would discuss at this week's hearing whether the February 2017 trial date was still viable.