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.
Wasn’t it noble and brave of Snowden to break laws in order to expose the overreach of the NSA?
Bob,
You like to point out hypocrisy? So do I.
Annie: “So how many laws did our Founders break? How about Snowden, how many laws did he break?”
Yes Annie, that’s our new categorical imperative!
Breaking the law is okay, so long as you can point to someone else breaking the law.
My God! Annie! You’ve solved the prison over crowding problem!
Let em all go!
You’re a genius.
Karen,
I do recall the republicans getting all Machiavellian during those fraudulent drum beats for war.
But when those liberals who could cite chapter and verse about all the laws G.W. Bush and co. broke turn around and claim their guy is as infallible as the Pope…
That’s a special kind of evil.
So how many laws did our Founders break? How about Snowden, how many laws did he break?
Scienter: a mental state in which one has knowledge that one’s action, statement, etc., is wrong, deceptive, or illegal: often used as a standard of guilt:
The court found that the company had the requisite scienter for securities fraud.
“So yeah; it’s ok with me if Obama breaks a few laws to achieve his ends as long as his ends are Progressive.”
Etc.
angryman:
http://www.bankrate.com/finance/taxes/top-1-percent-earn.aspx
“To make the top 1 percent, a household must have AGI of $343,927 or more.”
When wealth becomes more concentrated among fewer people, it denotes a shrinking of the middle class and a swelling of the lower class.
Obamacare makes health insurance unaffordable for the middle class. Most cannot afford premiums that amount to a mortgage. It will contribute to that concentration of wealth.
Bob: “They try to convince me that the principles that applied to Bush don’t apply to Obama.” True. They see right and wrong through political glasses. If it benefits their party, they become Machiavelli.
So you support the 1% if they are Liberal, but not if they are non-Liberal?
This may come as a surprise, but people disagree with his policies, not the melanin of his skin.
I don’t care if he has pink polka dots. My insurance that I loved got cancelled, my ACA compliant premiums doubled, my deductible increased 1100% to $6,000 per person, and my insurance policy is the same as an Exchange policy, which means that 75% of my doctors don’t accept it. When I pay out of pocket to see my doctors, it does not count towards my max caps. When I pay out of my pocket for off-formulary prescriptions, it does not count towards my max caps. And Obama lied to me that I would be able to keep my insurance and my doctor. It is a breach of trust for Obama to lie to the American people, and take healthcare away from the middle class. Because there is no way that the middle class will survive for long with premiums equal to a house payment (like mine).
Just wait until the employer mandate hits, and then try to say with a straight face that Democrats care about people and Republicans don’t.
Why do you think the employer mandate was delayed until after the election, if it was such a wonderful thing?
Angrymanspeaks: “So yeah; it’s ok with me if Obama breaks a few laws to achieve his ends as long as his ends are Progressive.”
That’s a lot of scienter. Almost pure evil.
“Jesus; did you really choose that analogy all on your own Karen?” To what are you referring?
I’m sorry I thought I was clear. the Plantation analogy. Read my comment.
On Mon, Jun 2, 2014 at 10:45 PM, JONATHAN TURLEY wrote:
> Karen S commented: “”Jesus; did you really choose that analogy all on > your own Karen?” To what are you referring?” >
Bob, of course you don’t.
angryman – the Obama’s are in the 1%, and were wealthy even before he was elected. Are you against them, as well?
I hardly think 7 million in assets qualifies for the 1%. Not even the top ten percent I shouldn’t think.
On Mon, Jun 2, 2014 at 10:42 PM, JONATHAN TURLEY wrote:
> Karen S commented: “angryman – the Obama’s are in the 1%, and were > wealthy even before he was elected. Are you against them, as well?” >
Oh, and you might be surprised to know that black conservatives actually are not fine with being called Uncle Toms and Step ‘n Fetchits.
Annie: “Angrymanspeaks has spoken! I like what you have to say.”
Of course you do.
angryman:
If you are against people aligning themselves with racists, how do you feel about Obama aligning himself with Joe Biden after he said this:
“”I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy,” Biden said. “I mean, that’s a storybook, man.”‘
http://www.cnn.com/2007/POLITICS/01/31/biden.obama/
Angrymanspeaks: “See how that double standard thing works? Don’t like it much? Nah; me either but you know what the Republicans believe. “The end justifies the means.”
Maybe you’re right after all. Seems to be working rather well. Suck it up. Turn about really is fair play. ”
What am I right about? That Obama is a deceitful hypocrite? That you’re a bigger hypocrite for knowing he’s wrong and defending him anyway?
Or that like Richard Clarke and Vincent Bugliosi, I think the Bush administration should be prosecuted for war crimes?
Ya see, perhaps if you were a man of principle, you wouldn’t be so confused right now.
Angrymanspeaks: “So yeah; it’s ok with me if Obama breaks a few laws to achieve his ends as long as his ends are Progressive. I admit it even though I intellectually believe it is wrong and I know I am applying a double standard because”
So yeah, you don’t mind living life bereft of moral principles.
You don’t actually expect me to believe that moral principles have anything to do with prosecuting anyone for anything. They shouldn’t at least. Morality is for Church not law. Law is based on something entirely different. A code of behavior; sometimes arbitrary and for the benefit of a few special interests and sometimes for the common good.
You want to prosecute Bush and Obama. I; on the other hand; don’t wish to prosecute either of them. I do think that Bushes responsibility for the deaths of thousands of young Americans for no good reason but for his own hubris vastly overwhelms your whining about Obama failing to ask Congress for this or inform Congress of that. The US Congress; controlled by Republicans has proven itself unworthy of being consulted by any Democratic President intent on fomenting positive change.
You can denigrate me all day for my hypocrisy but I am having some trouble feeling the guilt. I am not at all confused. I accept the dual nature of political loyalty and I accept the complete inability of man to avoid such conflicts or to behave in a perfectly consistent manner in every case. Hypocrite? Hmm. I think no more than most. The desire to prosecute everything is among other things a waste of time when the governing of a nation is at stake and the shades of gray so many.
I do realize that I am commenting on a legal blog and legal actions and judgments are likely to be; shall we say; confined to legal criteria but really; to suggest that I am lacking honor because I can accept the inevitable behavior of politicians is ludicrous.
Better prosecute them all by those standards. Not a truly bad notion but simply not practical. Same game.
If you are waiting for politicians of any party to play by the rules; you will be waiting until Jesus leads a party to victory. LOL
On Mon, Jun 2, 2014 at 10:33 PM, JONATHAN TURLEY wrote:
> Bob, Esq. commented: “Angrymanspeaks: “So yeah; it’s ok with me if > Obama breaks a few laws to achieve his ends as long as his ends are > Progressive. I admit it even though I intellectually believe it is wrong > and I know I am applying a double standard because” So yeah, you” >
I am pretty sure if you get Biden’s whole opinion he will be happy to explain that finding a well educated; well spoken man of any color to take on a run for president is difficult but since the Republican party has assured that African American students get substandard educational opportunities and life situation stresses that make success difficult at best; finding an African American I even more difficult. After all they begin with the distinct disadvantage of being only what; 12% of the population?
The Democratic Party has been actively seeking a good candidate who is also Black. Only 12 of every hundred qualify at all. What he said about Obama was correct. The fact that Biden spoke well of Obama doesn’t mean that h was disparaging of all other black people. What he said was positive When he said the first; I seriously doubt he meant the first articulate black man ever born. He meant the first one who presented himself for service as the Democratic Candidate for president.
In order to judge the cleanliness of the other previous possible candidates; I would have to have had close contact with them. Black or white; I don’t have the ability to make that judgment
I’ll never forget how my liberal friends delighted in hearing all the things I had to say about the Bush administration being bereft of principle. The savagery of warrantless wiretapping as if the 4th Amendment didn’t even exist; suspending habeas corpus without insurrection or rebellion; approving of the use of torture and extraordinary rendition.
And then came Obama; who got elected saying how he opposed of all of the above; how he wouldn’t dare do what Bush did. But once in office, Obama not only picked up where Bush left off, defending every policy listed above, but he expanded on them. What’s more, he tacked on his own bit of savagery in the form of claiming executive authority to assassinate American citizens.
And what do my liberal friends do?
They try to convince me that the principles that applied to Bush don’t apply to Obama.
Takes a high degree of scienter to do that.
True shamelessness.
Byron,
Patty C. used to call me that. For the longest time I had no idea what she was talking about.