Bergdahl

On 27 August 2020, CAAF issued its opinion in United States v. Bergdahl.

• “Thus, simply stated, it was the totality of the circumstances surrounding Appellant’s misconduct rather than any outside influences that foreordained the Army’s handling and disposition of this case. Therefore, an objective, disinterested observer would not harbor any significant doubts about the ultimate fairness of these court-martial proceedings. Accordingly, we hold that there was no appearance of unlawful command influence in this case, and we affirm the decision of the United States Army Court of Criminal Appeals.
• As a threshold matter, based squarely on the plain language of Article 22, UCMJ, 10 U.S.C. § 822 (2012), Article 37, UCMJ, and R.C.M. 104, we hold that Senator McCain was capable of committing unlawful command influence and that a sitting president of the United States is also capable of committing unlawful command influence. Slip op. at 6.

 Query does this mean that other legislators can also commit UCI? The application of UCI to Sen. McCain implies that, at least retired officers and Reserve officers could commit UCI. They are subject to the UCMJ and CAAF interprets the “subject to” language in Art. 37 quite broadly.

The question now will be how the new changes to Art. 37 will be applied. Clearly, it’s Congress’s intent to limit UCI claims–sadly. A collateral effect is that non-CAs can practice almost unfettered UCI during the anti-sexual assault mission.