The release of Army Sgt. Bowe Bergdahl, the only American soldier held captive in Afghanistan, has been a source of celebration but also concern in Washington. While the country has long insisted that it would not negotiate with terrorists, it seems like it has been doing precisely that for years in working out a trade that ultimately led to the release of five Taliban leaders. More importantly, federal law requires notice to Congress some 30 days before a release of a detainee from Guantanamo Bay — another federal provision that the White House appears to have simply ignored in a unilateral act. I am scheduled to discuss the case on CNN on Monday morning.
The circumstances of Bergdahl’s capture remain suspicious. He claimed in a videotape as a captive that he lagged behind a patrol and was captured. A friend who works closely with the military in Afghanistan says that that is highly unlikely given the protocols used on patrols. Fellow soldiers claim that Bergdahl was a deserter. My friend says that he was told that Bergdahl walked away from this base. He is quoted as saying that he was ashamed of being an American and disenchanted with the mission in Afghanistan. He was listed as missing in June 2009, three days after reportedly sending his parents an e-mail stating “I am ashamed to be an American” and “The horror that is America is disgusting.” Those sources say that he voluntarily left the mountain base. Worse yet, American soldiers were killed reportedly looking for Bergdahl, though there is still uncertainty about that claim.
That could put the President in a rough position. He declared that
“Sergeant Bergdahl has missed birthdays, and holidays and simple moments with family and friends which all of us take for granted. But while Bowe was gone, he was never forgotten”— not by his family or his hometown in Idaho, or the military. “And he wasn’t forgotten by his country, because the United States of America does not ever leave our men and women in uniform behind.”
If Bergdahl is a deserter, there will be pressure to charge him, but the trade may become even less popular if he is sitting in a brig. [Update: when I appeared on CNN this morning, the network aired the following statement from one of his former platoon members, Sgt. Matt Vierkant: “I was pissed off then and I am even more so now with everything going on. Bowe Bergdahl deserted during a time of war and his fellow Americans lost their lives searching for him.”]
Critics are likely to demand answers about his actions and alleged dissection while detailing the threat of these five leaders as well as their alleged Al-Qaeda connections. On the other hand, the White House is insisting that, with troops leaving the country, they needed to get him out and had no choice but to relent to the demand for a trade. The White House could also argue that the status of these Gitmo detainees remains a problem and the country cannot hold them indefinitely — so that these five would have had to be returned to Afghanistan eventually unless we were to use the widely ridiculed tribunal system.
Then there is the question of negotiating with terrorists and failing to comply with federal law.
Congressional leaders have warned that such trades only increase the incentive to capture U.S. soldiers and citizens around the world. The Taliban do not represent a nation state and many accuse them of regularly engaging in acts that would be deemed terrorism by the United States. The Obama Administration may be in the curious position of now insisting that they are freedom fighters or a legitimate military force rather than terrorists.
The federal law adds the obligation to notify congressional committees at least 30 days before making any transfers of prisoners with explanations of the conditions and arrangements for such releases. No such notice was given. While President Obama denounced signing statements by George W. Bush as a Senator and as a candidate for the presidency, he issued such a signing statement when the law was passed to say that the condition was unconstitutional as an infringement upon his powers as commander in chief. He appears in clear violation of federal law. You may recall then candidate Barack Obama promising “I taught the Constitution for 10 years, I believe in the Constitution and I will obey the Constitution the of the United States. We’re not gonna use signing statements as a way to do an end-run around Congress, alright?”
I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws.
It is notable that Obama is again claiming near absolute executive power (and augmenting this claim with the use of the controversial signing statement tactic). He is claiming that Congress cannot limit — even with a notice requirement — his control over detainees at Gitmo. It is another glimpse into what I once called the “uber presidency” that has emerged under the last two presidents.
The five men released are considered highly dangerous. Khirullah Said Wali Khairkhwa and Abdul Haq Wasiq are classified as a “high risk” to the United States. Two others, Mohammad Fazl and Mullah Norullah Mori, were present during the 2001 prison riot at Mazar-e Sharif when CIA paramilitary officer Johnny Micheal Spann was killed. Fazl is thought to be the Taliban “army chief of staff”) and a longtime al-Qaeda ally. Wasiq reportedly helped train al-Qaeda. Mullah Norullah Noori, a senior military commander also reportedly have ties with al-Qaeda. Khairullah Khairkhwa, a Taliban governor was also allegedly an al-Qaeda trainer. One is believed to be responsible for the deaths of scores of Shiites in acts of religious terror.
The agreement only reportedly includes a one-year travel ban — making it likely that these Taliban commanders will be back on the front lines.
The Administration has been negotiating on this trade for sometimes — years according to some reports. Yet, it clearly decided to violate federal law and not inform Congress. Once again, it is not clear who would have the standing to challenge such a violation due to the rigid standing doctrine created by the federal courts — an issue that I have raised previously in my testimony to Congress.
Putting aside the violation of federal law, do you believe that the United States should negotiate with groups like the Taliban or make trades with such captors? If not, where do we draw the line — with soldiers to exclude citizens? There are clearly arguments to be made by those who believe that we should negotiate with terrorists but the current official policy is that we do not.
“Gitmo: The elephant in the Bergdahl room
The President struck a deal to get an American soldier held by the Taliban in Afghanistan back and the world went crazy. By the world, I really mean tv pundits and Republicans who knee-jerk oppose anything and everything this President does. People who just weeks ago were criticizing him for not getting Bowe Bergdahl back were all of a sudden incensed that he struck a deal with the Taliban to do just that. (And don’t even get me started on Andrew Napolitano’s ridiculous “he could be charge with giving aid to terrorists for releasing these guys” nonsense.) It’s been fascinating to watch from a political standpoint.
But there’s a really important legal, criminal defense even, point that must be emphasized. What we should learn from the Bergdahl incident is this: Gitmo is now and has always been a terrible, horrible, no good, very bad idea and we have got to end it. We are running out of time to find a graceful way to end it and denial about the need to end it isn’t helping.
For centuries, the world has recognized certain rules about how to handle captured enemy soldiers during war. Countries were allowed to keep those soldiers, rather than release them so they could wind up back on a battlefield killing again, but within accepted parameters. And when the war was over, everybody sent the captured soldiers back home. The more amorphous war on terror, where we weren’t really fighting a defined foreign power made things a tad more complicated. We weren’t at war with Afghanistan itself, just the nasty elements that were allowed to grow in the more lawless regions of that country.
When the prison/detention camp thingy in Cuba was first created, it was a creative extension of normal international prisoner of war standards. We called the Taliban and Al Qaeda fighters we captured “enemy combatants” so we could detain them under international prisoner of war standards rather than trying to put them all through criminal court. It was definitely uncharted territory, which made it so tricky.
But that was over a decade ago. At some point, we had to know we couldn’t just hold these guys for the rest of their lives. Some who had provable ties to actual terrorist acts, like Khalid Sheikh Muhammad, we could try in criminal court, where presumably they will be convicted and we can then hold them forever. Because due process and international law both allow people convicted of murder in criminal court to be incarcerated for life. Combatants captured on a battlefield, not so much. We were never going to be able to make criminal charges stick against most of them, the vast majority of them, even. At some point, we were always going to have to start sending them home, even the really bad, high-ranking Taliban guys. It doesn’t matter how much they hate us or how much harm they might hope to do to us. The French and the British didn’t stop hating each other the moment a war ended, but they still sent each other’s men home. Even if that meant they’d face off in battle again some day. We just don’t get to keep them forever.
So since we have to accept that reality that eventually we will have to close Gitmo and release most of its inmates, we might as well get something for them when we can.
In the wake of the Bergdahl swap, it would be nice if we could have a serious discussion, then, about what we are going to do with all the rest of them. When and how will we release them (there is no “whether”), to which nations, and with what, if any, conditions. It would be lovely if we could calmly and rationally face this reality head on, if we could think about what other things we might negotiate about as we release more detainees. Instead of speciously whining that we made America less safe on behalf of the son of a man who looks too Muslim.”
http://rantsofapublicdefender.blogspot.ca/2014/06/gitmo-elephant-in-bergdahl-room.html
“There are important, qualitative differences in the criticisms Republicans have made in response to the prisoner swap that freed an American POW. For example, if Republicans want to make the case that the White House’s congressional notification was inadequate, the GOP has a reasonable case to make.
But the right keeps muddling good questions with dumb talking points. Today, some Republican senators were reduced to attacking the Obama administration for even transferring Guantanamo detainees in the first place. ”We’re in a war,” Sen. Jeff Sessions (R-Ala.) argued. “I think this White House does not understand that.”
President Obama isn’t the first president to release detainees from Guantanamo Bay. I think congressional Republicans do not understand that.
Among the many points of controversy to emerge following the swap of five Taliban prisoners for U.S. Army Sgt. Bowe Bergdahl is the question of whether the five mid- to high-level Taliban fighters will return to the battlefield.
It’s really no secret that according to the administration these five – two of whom are wanted by the UN for possible war crimes, including the murder of thousands of Shiites – very well may return to the battlefield.
Jake Tapper’s report referenced this report (pdf) from the Director of National Intelligence, which found that the Bush/Cheney administration released or transferred 532 detainees from the prison at Guantanamo Bay, and U.S. intelligence agencies believe 171 of those people – about a third – “re-engaged” in the fight against the United States. This includes Bush-released detainees suspected of participating in the deadly attack on the U.S. outpost in Benghazi, Libya, two years ago.
In contrast, as of earlier this year, the Obama administration released or transferred 82 detainees from Guantanamo, and intelligence officials believe 7 of them – less than a tenth – returned to the battlefield.
Let’s try this in chart form.
http://www.msnbc.com/rachel-maddow-show/were-war
If President Obama’s conservative critics want to make the case that releasing or transferring Guantanamo detainees is necessarily scandalous, it’s incumbent on them to explain why they never said a word during the Bush/Cheney era.
If President Obama’s conservative critics want to argue that releasing or transferring these detainees is dangerous, it’s equally incumbent on them to explain why they never said a word during the Bush/Cheney era.
If President Obama’s conservative critics believe end-of-war prisoner swaps are themselves somehow scandalous, it’s once again incumbent on them to explain why it’s never been controversial – to either party – when previous administrations did the same thing.
I know it’s an election year and the right is looking for anything for an advantage, even if that means complaining about the release of an American prisoner of war. But Republicans really would have better off sticking to the “congressional notification” argument, at least if coherence was part of their broader goal.
Update: I’ve seen some folks on Twitter suggesting that there are other relevant metrics when evaluating the data, including the total number of suspects sent to the detention facility by administration, who many detainees were tried, the degree to which detainees were deemed dangerous, etc.
These are legitimate points, to be sure. But the Republican criticism of late has been more straightforward: Obama released Guantanamo prisoners, those prisoners are Taliban members, the prisoners may someday return to the battlefield, ergo Obama has done something reckless and irresponsible. (In Ron Fournier’s words, the president may end up with “blood on his hands.”)
If the right genuinely believes releasing or transferring Guantanamo prisoners represents a security threat, my point is that it’s curious these conservatives had so little to say before Jan. 20, 2009.”