Lawyers for accused deserter and former Ft. Sam Houston Sergant Bowe Bergdahl are citing rulings by two federal judges blocking President Trump's proposed ban on travel to the U.S. from six Middle Eastern nations as precedent which demands that charges against Bergdahl be dismissed, News Radio 1200 WOAI reports.
Bergdahl is facing up to lie in prison if convicted by a court martial of desertion and misbehavior before the enemy for abandoning his post in Afghanistan in 2009. He was captured by the Taliban and exchanged for five inmates at Guantanamo Bay in May of 2014.
In a motion before the Appellate Court of the Armed Forces fioled on Wednesday,, attorney Eugene Fidell points out that two judges who blocked the President's travel ban cited anti-Muslim comments made by Trump on the campaign trail as proof that the travel ban is an unconstutionally based on religion, even though the ban doesn't mention 'Muslims' in its wording.
Likewise, Fidell says the military court must take into considering Trump's campaign statements that Bergdahl is a 'traitor who deserves to be shot' as evidence of bias against Bergdahl on the part of the Commander in Chief. He says that will inevitably lead to 'Unlawful Command Interference' in Bergdahl's upcoming court martial, something that is expressly prohibited under the Uniform Code of Military Justice.
"There is only one President of the United States. That he casts a long shadow over the armed forces is, given the text of the Commander in Chief Clause of the Constitution and provision after provision of Title 10, an understatement. He sets the command climate not only for the Army but for all of the armed forces," Fidell writes in his motion. "President Trump may have “felt like a new man”on Inauguration Day, but he has given no one the slightest reason to believe he has changed his mind about SGT Bergdahl and what should happen to him."
'Unlawful Command Interference' is a doctrine which is unknown in the civil courts, but it is critical to the administration of military justice. Since the military is a 'command structure,' UCI seeks to eliminate the chance that a General, for example, might give a direct order to a Colonel who is the judge on a court martial to find a defendant innocent, or guilty. Because an officer is duty-bound to obey a legal order from a superior, the Colonel would feel obligated to follow the order.
Fidell says UCI is vital to the public's appreciation of the fairness of military justice.