The case of Bowe Bergdahl: Judge, jury, executioner, President

For Trump, when America was younger and stronger, we would have known what to do

You have certainly heard of Bowe Bergdahl — the American soldier captured by the Taliban after he left his post in Afghanistan, the subject of the second season of the podcast “Serial” and the recurring object, during the presidential campaign, of Donald J. Trump’s ire.

With Mr. Bergdahl’s court-martial now in its second year — a pretrial session is set to begin on Monday — his defense team recently filed a motion to dismiss the charges against him on the basis of unlawful command influence. It claims that President Trump’s many prejudicial remarks about Mr. Bergdahl made at campaign events and political rallies preclude the possibility of a fair trial.

Mr. Bergdahl went AWOL from his unit in Afghanistan in 2009, was captured by the Taliban and later traded by the Obama administration for five Guantánamo inmates. He is charged with desertion and misbehavior before the enemy. In at least 40 public attacks on Mr. Bergdahl, Mr. Trump repeatedly made reference to what “we” would have done 20, 30 or 50 years ago. A representative excerpt from a July 2016 rally in Indiana:

“So we have a traitor named Sergeant Bergdahl. So Sergeant Bergdahl thinks he likes their way of life, obviously. ‘Oh, they have a wonderful way of life.’ So one day he leaves. We lose five and maybe six but five at least people looking for him. They were killed. They were killed by the enemy. They go out; they’re looking for him. They knew he left. Everybody with him knew he left because he was all whacked out and a believer in them, not us.”

Mr. Trump went on a bit, and then: “He deserted! Remember the old days? A deserter, what happened?”

He made a rifle-shooting gesture, then: “Bang. Twenty years ago it was bang.” Another rifle-shooting gesture.

For Mr. Trump, when America was younger and stronger, we would have known what to do. He pantomimes shooting a gun, professes his love for the Second Amendment, imagines more and more absurd methods of punishing Mr. Bergdahl like throwing him out of a plane without a parachute (or, O.K., maybe with a parachute) and bombing his landing zone immediately afterward.

Does the president believe that Mr. Bergdahl should receive a trial — fair or otherwise? Does he believe he is a traitor? Does he know there are differences among treason, desertion and going AWOL? What bothers me most about Mr. Trump’s rhetoric is the implied history lesson. His argument is a simple one: America has become weak; years ago, when America was strong, we handled such matters differently. Mr. Trump’s suggestion is, apparently, summary execution.

Only one person has been executed for desertion in the United States since the Civil War — Pvt. Eddie Slovik, in 1945. One of the military judges on Mr. Slovik’s trial later argued: Over six and a half years, “reasons were found by those in higher authority to void the death sentences of 48 men found guilty of desertion. Only in Mr. Slovik’s case was no reason found. Mr. Slovik, guilty as many others were, was made an example — the sole example, as it turned out. An example is a victim. His execution was a historic injustice.”

The execution of Private Slovik was perhaps not one of our finer moments. A finer one was helping to convene the International Military Tribunal at Nuremberg. There, we enshrined the belief that the entire international community, ourselves included, should be held to a higher standard — a standard of decency, morality and law. Another: the Uniform Code of Military Justice under Harry Truman. Despite many failings, each represented an attempt to provide for due process and to hold people accountable for their crimes.

And what about the presumption of innocence? The Supreme Court’s affirmation of this right in Coffin v. United States, from 1895, gives every indication of how fundamental the notion was thought to be: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

In 2014, Gen. Martin Dempsey, then chairman of the United States Joint Chiefs of Staff, acknowledged this basic principle: “Like any American,” Mr. Bergdahl “is innocent until proven guilty,” he said. “Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family.”

Other presidents have made comments that could have biased the outcome of a pending or current criminal trial, like President Nixon’s off-the-cuff remark during the trial of Charles Manson that Manson was “guilty, directly or indirectly, of eight murders.” The Nixon administration immediately tried to soften the remarks. The defense team moved for a mistrial, and Mr. Manson waved a newspaper headline reading “Manson Guilty, Nixon Declares” before the court. He might have gotten one if the nature of his crimes wasn’t so appalling.

In comparison, Mr. Trump’s harangues and charges against Mr. Bergdahl seem particularly severe. They were never retracted. Instead, they were repeated. Again and again and again.

There is an unintended irony here. Say you hate Mr. Bergdahl and think he should be severely punished under the Uniform Code of Military Justice. Hasn’t Mr. Trump created a situation where the courts are all but compelled to dismiss this case? Can we honestly say that scores of prejudicial statements before adoring crowds have not undermined the possibility of a fair trial? That the words of the commander in chief of the armed forces might not resonate still with the soldiers who serve in those armed forces, who depend on him for promotion and advancement, and whose credos depend in no small part on hierarchies of loyalty?

Eugene R. Fidell and the rest of Mr. Bergdahl’s defense team believe that Mr. Trump has given them grounds for dismissal. The claim that Mr. Bergdahl cost the lives of five or six servicemen remains unsubstantiated. Based on its investigations into the fatalities, the government did not rule out a possible link but “concluded there was not a direct enough connection” between those deaths and Mr. Bergdahl’s actions “to satisfy admissibility standards for the Military Rules of Evidence.” Since the president has declared that this is something that actually happened, who in the government would want to stipulate that the president is telling a falsehood? But here is the essence of Mr. Trump. A deeply pernicious view — advocacy of summary punishment without due process of law — coupled with false history and bald assertions.

At the end of George Orwell’s “1984,” just before the novel’s antagonist, the Inner Party member O’Brien, straps a cage filled with starving rats onto Winston Smith’s face, Winston has already admitted that two plus two equals five, as if that could be the deepest and darkest betrayal — a betrayal of the truth. But for Orwell, there is far worse. The power of the state to trammel every single value that we hold dear is the most appalling thought.

“If you want a picture of the future,” O’Brien tells Winston at one point, “imagine a boot stamping on a human face — for ever.” One can only hope that Orwell was describing a nightmare that could never become a reality.

© 2017 The New York Times News Service