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.
Far better for everyone concerned that the President is willing to take heat for bringing the soldier out than to pass up the opportunity and leave the guy in Afghanistan. Can you just imagine the political circus of that alternative scenario? If, as some suggest, this was politically motivated (a view I do not share) it’s a very smart one.
Chuck expressed my thoughts better than I could, so, what Chuck said.
Jonathan, I believe the following quotes from you fall under the purview of gossip.
“A friend who works closely with the military in Afghanistan says that that is highly unlikely given the protocols used on patrols.”
“My friend says that he was told that Bergdahl walked away from this base.”
Since your friend works closely with the military, I assume that he is not military. Has he ever even been on a patrol in Afghanistan?
Bergdahl may very well have walked away voluntarily. But, before I give those assertions any credence, I’ll need a lot more facts. Including whether he was already the platoon scapegoat for his views.
I believe many are missing the true motivation behind the exchange. Obama needed to demonstrate concern for our military dimming the negative focus on the VA hospital problems. Did anyone else notice involved in the announcement he was? It seemed more about him than anything else.
Reblogged this on Dead Citizen's Rights Society.
The 5 Taliban might have GPS tracking chip implants. Maybe the NSA has a backup plan. I’d put one in Sgt. Bergdahl too.
He wondered off base with no field orders, and got caught or wanted to. Other than that, live and let live, and say something if you see something suspicious.
thanks Paladin, now that Drudge is on the story we will get the perfect truth! (No, I am not serious.)
Reblogged this on ElderofZyklon's Blog!.
Reblogged this on saboteur365 and commented:
Drudge is running a lead story that Obama broke the law in the hostage trade. We will find out. I hope.
As the end of US involvement in war in Afghanistan draws to a close, we either leave Bergdahl behind or we exchange him. We did not pick the 5 to be exchanged. And if we thought we could have convicted them for 9/11 activities, we would have done so in the intervening decade. It was high time to [s..t] or get off the pot. We chose to [s..t] and so we did. But staying on the pot has its draw backs, too.
“There will be no peace….
…The de facto role of the US armed forces will be to keep the world safe for our economy and open to our cultural assault. To those ends, we will do a fair amount of killing.”
This shocks or surprises you? You are living in a dream world of fairy’s and beautiful princesses.
“I am ashamed to be an American” and “The horror that is America is disgusting.”
Do you suppose a US Soldier might know something of our conduct over there that we don’t?
Do you suppose that our academic understanding of atrocities pales in comparison to this soldiers first hand experience of the slaughter of innocents that has always been the working procedure for the US Military?
It is as simple as finding a willing Viet-Nam Veteran to sit and tell his stories.
Other Vets can tell similar stories but the loyalty to secrecy seems to be lessened among Viet-Nam Vets due to the horrific treatment meted out to them by the American people; ridden with guilt and shame over the mass killings and torture we visited upon the simple farmers and fisherman of Viet-Nam so as to provide a testing ground for the Military Industrial Complex and their cutting edge weapons of the time.
Like every other conquering Army; we use slaughter, torture, rape, and starvation as tools of terror to humiliate and cowl the local population and as a means of allowing tightly wound soldiers; stretched to the limits of their Psyche; to release the rage and frustration of formal combat actions
What else is new?
Reblogged this on Citizens, not serfs.
Don’t trade hostages for hostages. Take a page from the Reagan playbook, trade Hawk and TOW missiles for hostages.
Chuck Stanley 060214@0129
Military advisers don’t set policy, Is he speaking to the facts as he knows it or is he, as you imply, recommending policy?
Chuck – it seems clear that you cannot handle the truth. If you put troops on the ground, even as peace keepers, people are going to get killed.
In this case, the trade was so uneven, and done on the weekend, that it smacks of politics. During the Cold War we traded one-for-one, generally. Actually, if they captured one of ours, we would arrest one of theirs and then trade. The people in charge of this trade, got a bad deal. I would love to buy a car from them. I would probably end up with a free car and 1000 gallons of gas. Horrible, just horrible negotiators.
The practice of not negotiating with terrorists is good in principle and many can agree with this policy but what happens behind the scenes is often times blurred or gray.
There are times when governments and other entities will not address each other publicly yet there are times when they do. I wonder how often this happened in the past, perhaps in Beruit or dealing with the PLO and others.
There are two conflicting values here. The non-negotiation with terrorists and the US military principle of never leaving a soldier behind. If we could not locate this soldier despite five years of effort it seems that both principles cannot be simultaneously adhered to.
I bow to the wisdom and sage analysis of the first two gentlemen.
If Bergdahl would’ve been any one of our sons, what would we say then? Leave him behind to rot? Israel trades prisoners, so should we.
I read that Fox News “analyst” Ralph Peters accused Bergdahl of being a deserter and should be executed. I looked up Ralph Peters bio. He was in the Army as a commissioned officer, but was an intelligence officer. He was stationed in Europe. If he was ever stationed in the middle east, it is not reflected in his bio.
Some of his quotes are downright scary, and makes me wonder about him. For example, in 1997, Ralph Peters wrote:
With military advisers like that, we don’t need any enemies. We grow our own.
Until the announcement of a “proof of life” video of him last January, I had given up hope he was alive. As a realist, I had felt the vigil for him was just wishful thinking. I am always happy to be proven wrong in cases like this.
As for any criticism of him and whatever he did, people should be aware of what is taught in the escape and evasion training by all branches of the military. First of all, if he had any actionable intelligence to give his captors, it was out of date within hours or a few days of his capture. He knew that and I am sure his captors did too. They kept him alive because he was a bargaining chip.
How many of those who are so quick to criticize Sgt. Bergdahl or any other prisoner have been POWs themselves? My guess is zero. I notice that Senator McCain was not happy with the release of the Taliban we had been holding, but was not critical of the Sergeant. That is what one might expect of a former POW. Those who cry “traitor” have no street cred. McCain does.
As for “terrorists,” keep in mind the Taliban are in their own country, Afghanistan. As for consent of Congress about anything, the obstructionist and gridlocked Congress couldn’t vote to agree this is Monday.
I am glad this episode in a war that should have been stopped years ago is over.
We will be talking about untreated PTSD and the effect it has on those who serve in the near future.
This is easily your most offensive and political post ever. An American POW is home with his family. If you have anything else to say about that, try waiting a couple of weeks.
You know he said nice things about his captors, don’t you? I look forward to your post about Stockholm Syndrome and brainwashing. His captors celebrated Christmas with him: What a horrible Islamist plot to undermine our way of life!
Only an idiot would consult with this lout-mouthed Congress about anything involving our troops.