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.
I would suggest the Obamacare mandate on employers will probably be that between five and ten years from full implementation over half of private sector employers will simply cut the medical care benefit for employees and pay the tax penalty. The tax penalty will represent a fixed and predictable amount but the health care cost will increase, likely each year as it usually does presently, particularly as the spread between the cost increases and the tax penalty become at parity.
If that happens in large measure employees would have an effective reduction in wages because they would be then required to purchase insurance themselves whereas before the employer might have paid that for them. But if they don’t buy the insurance they could themselves face tax consequences if their AGI is above a certain level.
A consequence of this might be that people go to the exchanges, yet this will likely be those who have families, present health care issues, or those over thirty five or so. One particularily short-sighted and in my view a product of wishful thinking on the part of the Obamacare authors is that young people are not showing a high propensity to enroll in the healthcare exchanges this might create an imbalance in insurance coverage because otherwise the young essentiall pay for the sick and the old. But if the positive payers are minimal and the costly insureds are more numerous the insurers, be it government or private, are going to raise premiums generally to cover the shortfall. Previously if in group employer plans the young and healthy are covered the same as the others but the employees otherwise might not often purchase it on their own. But if the employers are not offering this you will have more de facto elective health insurance participation and this is over-burdensome on insurers.
Another factor is our society is not used to the issue of say becoming an independent adult and automatically enrolling in heath care presently. It is often not considered until a large medical expense hits them. But if they receive this benefit through employers they then become accustomed to having insurance and it then becomes important to them.
I would agree that extending the heath coverage under their parents’ plan could be a cushion, but if the parents are not able or willing to pay the premiums that could be problematic for those just getting out on their own.
As far as small business is concerned one only has to own one to know how expensive health insurance can be. One business that I owned the heath insurance was about $460.00 per employee. I could deal with that but it was only for the employee and not dependants or a spouse. If I elected this coverage the cost would have been over $1,400. That would have been 60% of the take home pay of one of my assistant managers and 90% of my part time employees. If my business was mandated to provide full medical insurance for spouses and dependents, as an example, I would have had to lay off all of my part time employees to cover the labor costs because competition with others in the market made the selling price of goods almost inelastic and therefore I could not pass these costs onto customers via price increases.
But then one has to ask if the investment of running a small business is worth the headache, the risk and the costs compared to other investments. If a small business owner could only expect a five percent return on their investment, with no potential capital appreacion, just income and he/she could obtain a ten percent return in the stock/bond market with the same risk and less headache that business is possibly going to close because it is no longer worth it to the business owner. Then employees become subject to layoff, the city recieves less tax revenue and they landlord of the commercial property has a loss of rent income. The effects can cascade downward.
This is often the reality with owning a small business. It is not a social service, it is an investment for the owners. That is just the way it is.
Hey Darren,
I agree that the unwillingness of young and/or healthy people to buy health insurance is a problem for Obamacare. It is problem that was certainly foreseen. Young people and healthy people don’t need Social Security either. They bitch about how much it costs (I did when I was young) but when the time come to retire either for age or health reasons; suddenly we’re standing at the bench saying “Hey, I paid into this all my life and I only want what I paid for”. The Social Security Administration is not so quick to accede. Two years of jumping through hoops etc. but I digress.
My point is that we understand that young people don’t want to pay Soc. Sec. We also understand; because we are aged adults with life experience (some of us with little money) that they need to pay Soc. Sec. while they can so as to benefit from it when they do need it.
Now as aged adults isn’t it just as clear to us that these kids will eventually be where we are today and that they will almost assuredly need heath care as we do.
Health Care like retirement is something we don’t want to think about when we are young but there is no question as to the need for it at some point. How can we; in good conscience continue to treat Health Care as a commodity to be traded and sold and packaged according to what you are able to pay and left up to the whims of a bunch of kids essentially?
Bronze Plan; Silver Plan; Gold Plan; Platinum Plan? Diamond Plan? Anti-Matter Plan?
It’s a crock. Everyone needs and everyone deserves because we are able to provide it; the very best healthcare available anywhere. Everyone gets the Anti-Matter Plan. The best; cutting edge health care.
That is one of the big problems with Obamacare or any system where everyone is not included and enrollment is essentially voluntary.
That an many other Capitalist inspired difficulties would be solved by; wait for it; a Universal Healthcare system similar to what EVERY other civilized nation now has.
I often hear Republicans with near terror in their voices express their fear of and distaste for “European Socialized Medicine” because Government run healthcare is wasteful; slow; and doesn’t generate enormous profits for our corporate interests and I want so badly to ask:
“What happened to that American know-how? Where is that Patriotism you go on about so much? If you were truly a Patriot; you would get off your fat Republican ass and do something to help your country develop a government run healthcare system for everyone; read that 100% of the population elected officials included; that will work and run efficiently and give excellent service.
You claim to be business geniuses; path-finding pioneers of the corporate world; those who have pulled themselves up from the depths of poverty by the shear will of your personality and intellect and your willingness to persevere despite mind numbing difficulties.
Well; Um; I think you get my point.
Yes taxes would go up and yes once again we would be asking the wealthy to pay more; because they can and because taxing them a bit more won’t take away their ability to exercise their freedom and navigate the financial playground as always before BUT their sacrifice of higher taxes will provide; create freedom for millions upon millions of Americans. Freedom from sickness, suffering, and early death.
Seems fair to me and although I have little money; I would still support this plan if I did. Of course I won’t ever have that much money because I am not a Sociopathic Manipulat… aaaah; Never mind.
On Tue, Jun 3, 2014 at 1:42 AM, JONATHAN TURLEY wrote:
> Darren Smith commented: “I would suggest the Obamacare mandate on > employers will probably between five and ten years from full implementation > will be that over half of private sector employers will simply cut the > medical care benefit for employees and pay the tax penalty. The ta” >
Its so funny Glen Beck says, soldier Andrew Tahmooressi is telling the truth while at the same time telling us that soldier Bowe Bergdahl is a liar. You should see his interview with Andrew Tahmooressi, trying to get him to slam the Whitehouse, sorry gecky, no go. Gecky has always been full of lies, remember his FEMA death camps rants, what a joke and all his chicken littles that try to sell that the sky is falling but we know better, keep lying Gecky, that all you do now!
Personanongrata
It appears that the fastest way to “get home” is to join the Taliban and have Obama “rescue” you home…
Karen S
It shall be interesting to learn how the Taliban treated Bergdahl.
Did they strip him naked and force him to stand in restraints for 22 hrs?
Did they strip him naked and force him to sleep on cement slab?
Did they give him his daily water treatments restrained to a board?
Did they force feed him against his will?
Did they pee on his Holy Bible and step on it or drop it in the latrine?
Did they cage him in an isolation box in the sun for days?
Wait till the media gets hold of the story…
… Oh, who am I kidding?
I bet Oliver Stone is already in post production!
Karen’s numbers seem very wacky. Sorta like all those Koch ads we were treated to.
angryman is wonderful. personanongrata is pretty great, too. Refreshing change to the usual bile shred by a couple around here.
Karen S,
Sorry about the health care costs and cancellation…
… That UNIVERSAL HEALTH CARE FOR ALL needed your support.
Sorry you got screwed.
angrymanspeaks,
There is a simpler word to describe the principle of:
It’s not when my man does it…
It begins with the letter H and ends with a y.
Real solid principle, yes?
Paul C. Schulte,
Sorry, had to duck out… work.
If we impeached Obama… then we get (fill in blank with best FEAR possible)
Say Paul,
What do we get when we don’t hold High Officials accountable for their crimes? Another Bush…
Seriously dude… Why hold anyone accountable for their actions?
Because, you know, The Rule of Law. Without it, you get TYRANNY!
Now, I’m punting FOR The Rule of Law… Why punt for TYRANNY?
Why are we stopping with Bowe Bergdahl?
Lets bring everyone home.
How many more lives destroyed for a lie?
Bob, I love my children, grandchildren and friends. I don’t love political figures.
Annie,
I said “despising the man’s hypocrisy.”
If you still love him for the hypocrite that he is; that’s another matter entirely.
Why should I despise him? I don’t even despise you.
Annie,
Criticizing Obama for doing things you don’t like is not the same as despising, much less acknowledging, the man’s hypocrisy.
Forty years ago I represented a guy, who will remain unnamed, who was just out of Leavenworth and then admitted to a state mental institution. He was delusional and thought he was in Nam. According to his Leavenworth records he was delusional and not treated by any psychiatrist for his two year hitch. He had been convicted for desertion on the last day of his one year Tour in Vietnam. He feared that the Gooks were blowing up the planes that were to take him and his unit home. He had been a tunnel rat and had decorations. He lived in the jungle for a eight month spell and wandered into a PX. He thought he was still in his unit. The arrested him, tried him, never gave him a psych exam and convicted him. Now that he was on the streets he did not know his family and was psycho. He was not eligible for VA hospital in those days because of his conviction for desertion and expulsion with dishonorable discharge. We tried filing suit to set aside the conviction but we were out of time. President Jimmy Carter gave him a full Pardon after extensive effort on my part and my gathering Congressmen including William Clay on his behalf.
As to this guy who supposedly “deserted” in Afghanistan. I have little faith in the stories coming out of the Pentagon about him being a deserter. If I lived in Idaho I would be his lawyer if he wanted one.
Bob,
I’ve pointed out Obama’s weakness when he capitulated to the Republicans. I’ve criticized him for not pushing a Public Option. I’ve criticized him when he didn’t get out of Afghanistan soon enough. I’ve criticized him when he didn’t close GTMO. I’ve criticized him for his role in alowing the NSA to spy on Americans.
Angrymanspeaks: “You can denigrate me all day for my hypocrisy but I am having some trouble feeling the guilt.”
Well, you know what they say…
“Never attempt to teach a pig to sing; it wastes your time and annoys the pig.”
― Robert A. Heinlein
OK! I’m your new groupie Angryman. 😉
Annie: “You like to point out hypocrisy? So do I.”
Do you like to point out the hypocrisy of Obama and Democrats?
Or just Republicans?