"Bowe Bergdahl" by United States Army is licensed under CC0 Public domain (via Wikimedia Commons)

In June of 2009, 23-year-old Army Sergeant Bowe Bergdahl deserted his post at Mest Manko in Afghanistan.  Shortly thereafter, he was captured by the Taliban.  He was held as a prisoner of war for five years in deplorable conditions.  In 2014, President Barack Obama’s administration arrived at an agreement with the Taliban. In exchange for Bergdahl’s release, the United States would release five Taliban members from Guantanamo Bay.  The deal was controversial.  Many people felt that the U.S should not have negotiated with terrorists for release of a soldier that deserted his post.

Bergdahl’s case was a hot topic on the campaign trail during the 2016 presidential election.  Now-President Donald Trump commented on it frequently, referring to Bergdahl as a traitor and suggesting that if he could undo the deal, sending Bergdahl back into captivity and returning the detainees to Guantanamo, he would do so.  

The court-martial process has begun for Bergdahl.  If the prosecution is successful, he faces life in prison for desertion and misbehavior before the enemy.  This week, Bergdahl’s attorneys filed a motion to dismiss the case on the grounds that his public disparagement by the candidate who became President of the United States will preclude him from receiving a fair trial.  Specifically, Bergdahl’s attorneys are alleging that Trump exercised what is known in military law as “unlawful command influence,” which means that a person in a command position provided some form of pressure that affects the outcome of a proceeding in military court.

In order to establish that a commander has exercised unfair pressure on the outcome of a military court proceeding, the defense must first provide evidence that such influence was, in fact, present.  Once the defense has provided sufficient evidence, the burden of proof switches to the prosecution to establish one or more of the following:

  1. the actual facts of the case are not those described by the defense;
  2. the facts are the way the defense described, but they do not constitute unlawful influence;
  3. or, even if there was unlawful command influence, it did not in fact generate prejudice against the defendant.

Trump’s involvement in this case is somewhat unique.  At the time that he made the comments in question, he was not yet the President of the United States.  However, as a candidate for the office, he didn’t mince words when it came to describing his attitudes toward Bergdahl both in campaign speeches and on his personal Twitter account.  He frequently refers to Bergdahl as a “dirty rotten traitor.”  Much to the enjoyment of rapturous audiences, he hinted at what the United States would do “if we were strong,” pantomiming execution at the hands of a firing squad.  Of particular concern to the defense was the comment made by Trump on the topic of Bergdahl, promising that, in the event that Bergdahl receives a light sentence, “If I get in we will review his case.”

Unfortunately, Trump’s desire to score political points by discussing Bergdahl’s case on the stump were not met with a corresponding desire to fact check before speaking.  Some of the claims that he made were false, and those false claims are now part of the public consciousness with respect to this issue.  For example, Trump claimed that six soldiers lost their lives because of Bergdahl’s desertion.  At best, those claims are unsubstantiated.  At worst, they are outright false.  Sarah Koenig, in her popular podcast Serial, devoted an entire season to an objective investigation into the Bergdahl case.  Her investigation was unable to substantiate a single death that could be tied directly to the desertion of Bergdahl.

The moral tensions involved in this case touch on issues of justice and fairness.  In the intervening years since the deal was made that allowed for Bergdahl’s release, a debate has raged about whether legal action should be taken against Bergdahl at all.  Some argue that deserting one’s military post is a serious offense, one that puts the lives of one’s fellow soldiers in jeopardy.  Those that take this position also often argue that Bergdahl put the lives of other soldiers at risk when they were sent on missions that involved looking for him.

 Others argue that Bergdahl was very young when he abandoned his post.  It was a mistake born of hubris that many young people might make.  Moreover, as a prisoner of war, Bergdahl was punished enough.  He was left in dark spaces for unfathomable lengths of time, and was provided with little in terms of food and water.  He was also tortured and beaten by his captors. This inhumane treatment went on for five years. Major General Kenneth Dahl, who was tasked with leading the investigation into Bergdahl’s case, has indicated that he thinks jail time for Bergdahl would be “inappropriate.”

Aside from issues pertaining to the morality of prosecuting Bergdahl in the first place, there are new moral questions posed specifically by Trump’s behavior.  The prosecution contends that, though Trump is the President now, his remarks don’t constitute undue influence by a command officer because he was a private citizen when he made them.  In maintaining this position, the prosecution pursues strategy (2) from above—though they acknowledge that Trump made the comments that the defense claims he made, they deny that those comments constituted unlawful command influence because Trump was not in command at the time at which they were made.

The prosecution is also pursuing strategy (3).  They deny that Trump’s comments will influence the trial.  In military court, a panel of judges selected by a commanding officer adjudicates a case.  This procedure stands in contrast to the court system for civilians in the United States and has itself been the subject of moral criticism.  Attorneys involved in the case, including attorneys for the defense, will have the opportunity to question the members of the panel.  The prosecution argues that this process will protect against bias in the proceedings.  

Others are concerned that a panel cannot truly be objective with respect to this issue knowing the resolution that Trump expects.  His actions and his words reflect a certain intolerance toward those with whom he disagrees.