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1 1 (November 02, 2020)

handle is hein.crs/govdcmj0001 and id is 1 raw text is: Cors 10a a $ervk Military Appellate Court: Presidential Comments Can Amount to Unlawful Command Influence November 2, 2020 In a set of divided opinions on August 27, the U.S Court of Appeals for the Armed Forces (CAAF) rejected Sergeant Robert Bowe Bergdahl's appeal in his desertion case, which he argued was invalid due to unlawful command influence. However, CAAF found that the President's remarks about an ongoing court-martial trial c an amount to unlawful command influence in violation of Art. 37 of the Uniform Code of Military Justice (UCMJ). The court reasoned that the President is by statute a convening authority for general courts-martial and is therefore subject to the Rules for Courts-Martial (R.C.M.) Rule 104(a)'s prohibition on unlawful command influence, which implements Art. 37 of the UCMJ. The court also held that the late Senator John McCain's actions as Chair of the Senate Armed Forces Committee regarding a pending court-martial could have violated Art. 37 of the UCMJ because Senator McCain, as a retired member of the Armed Forces, was a person subject to the UCMJ. However, under the facts of the case, a CAAF majority held there was no apparent unlawful command influence, affirming the lower court's determination that appellant Bergdahl was not entitled to relief. This Legal Sidebar explains the prohibition against unlawful command influence in military courts, describes the tests CAAF uses to decide whether unlawful command influence has occurred, and explains CAAF's decision in the Bergdahl appeal. For more information about military courts-martial, see this CRS Report. Congressional Research Service https://crsreports.congress.gov LSB10549 CRS Leglsi&bar Prepared :c::M nmbersand Cm;teof Congc --- a

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