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.
http://talkingpointsmemo.com/livewire/gop-strategists-interviews-bergdahl ”
“Republican operatives apparently believe there’s something to be gained by painting Sgt. Bowe Bergdahl as a deserter.
The New York Times ran one of the manifold articles Monday focused on resentment toward Bergdahl among some of the soldiers in his unit, and the paper disclosed the interviews were arranged by GOP strategists.
Republicans and conservatives have questioned the legal and national security implications of the prisoner swap that led to Bergdahl’s release. But they have also scrutinized the POW over his 2009 disappearance and his stated objections to the military’s actions. Some on the right have even gone after Bergdahl’s father, Bob.”
Karen, I had 5 employees who all had health insurance. I had health insurance through my wife. Like Darren, I would also had to lay off people. That’s what is coming down the road.
Yes; much like the days of Pleasant Living in Good Old Dixie; The days of unrestrained Capitalism; which allows you guys to make unlimited profits while providing few or no benefits and/or subsistence wages; are going the way of the Dinosaur. I know you believe what you say but come on. You hire people to help you build your business and they do. Then, as soon as you are required to give them a fair deal; you choose to dump them rather than a little less for yourself.
Maybe drive a cheaper car. Wear cheaper suits. What? Eat chicken once in a while instead of steak?
You don’t fool me. I’ve been a small business owner and I have known many others in the course of my life and these are just the kinds of sacrifices they consider undoable; move to a cheaper house. No way.
“Ah’ve wuked fo mah mon-ay en’ Ah desuv’ to walla’ in it.” Yes Sah! And all the poor and middle class slaves will just shuffle along behind; happy to know our place and grateful for the crumbs you may drop behind.
You are entitled to make more than your workers; of course but not if your profits interfere with your workers receiving a decent living for a 40 hr week. This is one way to restrain Capitalism and prevent the situation we currently find ourselves in.
On Tue, Jun 3, 2014 at 11:07 AM, JONATHAN TURLEY wrote:
> Nick Spinelli commented: “Karen, I had 5 employees who all had health > insurance. I had health insurance through my wife. Like Darren, I would > also had to lay off people. That’s what is coming down the road.” >
Nick – that’s a good plan! I also support that plan for judges who release killers and rapists, like the Pillowcase rapist, who raped dozens of women each and every time he’s been released in the past. I think he should go live in the Judge’s neighborhood!
Former Guantánamo Chief Prosecutor Defends American POW-Taliban Prisoner Swap
http://www.democracynow.org/2014/6/3/former_guantanamo_chief_prosecutor_defends_american
Any plan? How about releasing them to your neighborhood on electronic monitoring? That’s my plan. OK?
“But people who have never owned a business just don’t understand this.”
Oh, please.
Jim:
True. There is absolutely no point in responding to anyone who believes that millions of people are racists simply because of their political affiliation. You can’t reason with that prejudiced mindset.
Darren:
“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.”
Thank you so much, Darren. That is EXACTLY what I have tried to explain, both about mandating employers to provide insurance, and increasing the minimum wage beyond inflation. There is no magic money tree that springs up overnight to pay for it, and employers only have fixed options: increase cost of goods/services, take a pay cut themselves (and sometimes small business owners only make a small amount of money to begin with), or cut hours/layoff employees.
But people who have never owned a business just don’t understand this.
nick, Bush and Rumsield should have never opened Gitmo. Any plan to empty it out i should be welcomed
My experience with Obamacare coincided with what the CA insurance commissioner admitted would happen, as well as Forbes analysis of premium and deductible increases, as well as the CA Medical Association’s analysis of doctors not accepting the plans.
True Believers refuse to see any facts that could erode their beliefs.
Rational, reasonable people look at all facts, the good, the bad, and the ugly, and make an informed conclusion, even if it’s not what they wanted to happen.
SWM, If this is a grand plan to close Gitmo then it is even more chickenshit than the drone strikes as a way to deal w/ terrorists rather than capturing them. I did see Bergdahl’s old man called for the release of more detainees from Gitmo on his Twitter feed. Maybe Bob Bergdahl is in charge of the operation?
Bob:
There can be True Believers in any party. I don’t trust any politician farther than I can throw him. Too many back door deals, pork, etc.
Wrong is wrong, not matter if it benefits your party.
http://www.thedailybeast.com/articles/2014/06/02/bergdahl-deal-could-be-first-step-to-emptying-gitmo.html “In his 2014 State of the Union address, Obama promised to shutter the prison built on Cuban soil by the end of the year. Obama now has seven months to fulfill his latest promise to shut down Guantanamo—or come as close to it as he can. During that time, Congress will be unable to prevent the release of the 149 prisoners still there.
“This whole deal may have been a test to see how far the administration can actually push it, and if Congress doesn’t fight back they will feel more empowered to move forward with additional transfers,” said one senior GOP senate aide close to the issue. “They’ve lined up all the dominoes to be able to move a lot more detainees out of Guantanamo and this could be just the beginning.”
Release of Taliban detainees shows Obama has power to close Gitmo
by Jason Leopold
http://america.aljazeera.com/blogs/scrutineer/2014/6/2/release-of-talibandetaineesshowsobamahaspowertoclosegitmo.html
“Hayden also said the administration is “making progress on a number of additional promising opportunities” to hasten the closure of Guantanamo, consistent with a promise Obama made after he was sworn into office. She said 17 prisoners have been transferred since Obama gave a major counterterrorism speech in May 2013. While Hayden noted that Obama lifted the moratorium on the transfer of Yemeni detainees none have been repatriated. However, she said the administration is “now reviewing Yemeni detainees on a case-by-case basis.””
Byron,
No offense taken. I was just taken aback since Patty C. was a poster from five years ago.
I was unable to read all the comment so I apologize of this was already posted:
Jun. 3, 2014 8:35 AM ET
Obama: Congress consulted on prisoner exchange
By JULIE PACE, AP White House Correspondent THE ASSOCIATED PRESS STATEMENT OF NEWS VALUES AND PRINCIPLES
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WARSAW, Poland (AP) — President Barack Obama on Tuesday defended his decision to release five Afghan detainees from Guantanamo Bay in exchange for an American soldier’s freedom, saying his administration had consulted with Congress about that possibility “for some time.”
Obama also brushed aside questions about the circumstances surrounding Sgt. Bowe Bergdahl’s capture by insurgents in 2009. The United States, he said, has a “sacred” obligation to not leave men and women in uniform behind.
“Regardless of the circumstances, whatever those circumstances may turn out to be, we still get an American soldier back if he’s held in captivity,” Obama said during a news conference in Poland as he opened a three-country European visit. “We don’t condition that.”
There have long been questions about how Bergdahl disappeared from his unit nearly five years ago. The Pentagon concluded in 2010 that Bergdahl walked away, and, after an initial flurry of searching, the military curbed any high-risk rescue plans.
Despite the Pentagon’s conclusions, Obama said the government was not currently seeking to punish Bergdahl as a deserter.
“Our main priority is making sure the transition that he’s undergoing after five years in captivity is successful,” he said.
Republicans in Congress criticized the agreement and complained about not having been consulted, citing a law that requires Congress to be given 30 days’ notice before a prisoner is released from Guantanamo. Republicans on the House Armed Services Committee said the Pentagon notified the panel by phone on Saturday that the exchange was occurring in the next five hours.
Obama suggested Tuesday that lawmakers were aware of the prospect that the U.S. could agree to a prisoner swap with the Taliban. And he defended his administration’s handling of the formal notifications, saying that when the opportunity to free Bergdahl presented itself, “We seized that opportunity.”
Officials said delaying Bergdahl’s transfer in order to comply with the congressional notification rules would have interfered with two of the president’s constitutional authorities: protecting the lives of Americans abroad and protecting U.S. soldiers……
“Because such interference would significantly alter the balance between Congress and the president, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the administration would be barred from taking the action it did in these circumstances,” White House spokeswoman Caitlin Hayden said in a statement released shortly after Obama’s news conference.
http://hosted2.ap.org/APDEFAULT/3d281c11a96b4ad082fe88aa0db04305/Article_2014-06-03-Captured%20Soldier-Obama/id-82bf4eedc7394728b8918bd16d6002df
http://www.huffingtonpost.com/2014/06/03/jeffrey-toobin-obama-broke-law-bergdahl_n_5437034.html?utm_hp_ref=media&ir=Media Toobin says Obama broke the law but the law may be unconstitutional.
Nick Spinelli – “angryman, Thank you for your detailed comment. I now have a good sense of your mindset. I hope you enjoy your time here engaging other folks. I will respectfully abstain.”
I too will not reply or read him. Anyone who calls me a racist without knowing me, shows who the real racist is.
Darren,
Well put.
Bob, Esq:
I used that good naturedly and meant no insult.
We invade a country and then claim those defending the country are “terrorists”. It’s just another word to demonize the opposition. Those who are captured are then held and tortured without any legal protections. They are “terrorists” but there is no trial where evidence is presented that back up the claims (no charges were ever filed). After reading lots of stuff about this, I still believe it was an exchange of POWs and Obama was right making it happen. I’m sure that it’s only this Congress, the one that insists that Obama will not succeed in any way, that insisted on approval rights for such exchanges.
No, I’m not an Obama apologist. I didn’t vote for him and I have been very critical of many actions of his administration.
bettykath,
I did vote for him but I have been critical of many of this administrations actions and failures to act. But I don’t want to impeach him. Sorry. They all break the law in some way. They all take questionable actions. Impeach Obama? Impeach the only President since LBJ to do anything tangible for the people of this country? All the people; not the Republican definition of “the people” Listen; I have said before; I am not a Loyal anything and I don’t kiss my statue of Barack Obama everyday but when a man does good; he does good. At least with Obama we get to take the bad with the good. With the Republicans; all we get is the bad with the bad. By all that’s gaseous and unapproachable in the universe; if we were going to impeach a president; why Obama? Why not Bush? Did he not break laws? I didn’t want to impeach Bush either. Not my style. I also don’t call the Cops or file lawsuits against my neighbors. I will however happily file a lawsuit against any corporate entity that causes harm in anyway to myself or my family because a corporation is *NOT* a person but *IS *a faceless machine designed to increase profits and feed the stockholders regardless of who or what must be crushed under foot to achieve their goal. I can think of few things that would bring me a much pure joy as winning an enormous lawsuit against one of these “Dragons” of our world. It’s almost orgasmic just thinking of it even though I am aware that their coffers are so deep as to be essentially limitless and my great victory is just a billion dollar write off to them. Wow. That felt good.
You know the scariest thing about someone saying “I didn’t vote for Obama”? It’s that lingering possibility that you still voted …..which would mean that you must have voted for; no don’t tell me. I’d rather go forward feeling like I can respect you.
I still wake up at night with the feeling of dark unease after dreaming that the 2012 election went the other way by some insidious quirk of the Universe.
You are correct about our military and propaganda practices. We do what we want and go where we want. We invent or create excuses for r actions and we kill all who can deny our charges.
Both parties are guilty but more guilty is the “Conservative establishment” who actually run our various bureaucracies including the Military; which is after all; just a bureaucracy with spit and polish.
On Tue, Jun 3, 2014 at 8:21 AM, JONATHAN TURLEY wrote:
> bettykath commented: “We invade a country and then claim those > defending the country are “terrorists”. It’s just another word to demonize > the opposition. Those who are captured are then held and tortured without > any legal protections. They are “terrorists” but there is no tri” >
Angrymanspeaks, I retrived your comment above at 9:51