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.
The UCMJ will decide his fate. No one here will.
SWM, You obviously have not read the Rolling Stone piece. Bergdahl was talking about walking the mountains of Afghanistan solo before he was even in country. He tried to get in the French Foreign Legion and they said, “No way.” I base my thoughts on those who knew him, both states side and in country. Since you won’t say on what you base your stance, I will say blind allegiance to Obama. If I’m incorrect, please set the record straight. As I said yesterday, the ICMJ
I’m giving facts, and I am being attacked personally. I am not going to whine or bother emailing JT. I’ll just keep putting out facts. I have no control over what others do.
“He very well could have been suffering from ptsd and had a breakdown.” -swarthmore mom
Yes, but that’s irrelevant to those who prefer witch hunts.
America’s parallel “justice” system will take care of him. (The Constitution means nothing to these folks.)
SWM, it’s what we’ve come to expect from them.
http://talkingpointsmemo.com/livewire/kilmeade-bob-bergdahl-beard-taliban The right wing is doing its best to vilify the whole family.
nick,The army has the evidence and also the records concerning his medical condition so they will have to decide. He very well could have been suffering from ptsd and had a breakdown.
SWM, Based on the evidence provided to date, I do. I base my opinion on the men and women who served w/ Bergdahl and the soldiers who lost comrades searching for this deserter. On what do you base your opinion?
That comment was directed at nick.
No one is confused. I am guessing that you are among those that think Bergdahl should be court martialed
http://www.nytimes.com/2014/06/03/us/us-soldier-srgt-bowe-bergdahl-of-idaho-pow-vanished-angered-his-unit.html “Sometime after midnight on June 30, 2009, Pfc. Bowe Bergdahl left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life. He slipped off the remote military outpost in Paktika Province on the border with Pakistan and took with him a soft backpack, water, knives, a notebook and writing materials, but left behind his body armor and weapons — startling, given the hostile environment around his outpost.”Sometime after midnight on June 30, 2009, Pfc. Bowe Bergdahl left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life. He slipped off the remote military outpost in Paktika Province on the border with Pakistan and took with him a soft backpack, water, knives, a notebook and writing materials, but left behind his body armor and weapons — startling, given the hostile environment around his outpost.
Oh, Nick. Stop confusing people with facts and statistics. 🙂
Nick – his decision would have been much more popular had he rescued our Marine in a jail in Mexico, where we supposedly should have some pull.
Instead of “all employers” I meant “some employers.”
A Feb 2012 ABC WashPo poll shows 70% of US citizens support keeping Gitmo open. 53% of Dems support keeping it open. So, there’s that.
Because his willful actions in desertion caused the deaths of 6 soldiers, and injured many others, he at least deserves a dishonorable discharge.
And don’t forget all those emails he sent to his parents about hating America. Let’s just give him a lie detector test. He’ll have to be debriefed, anyway.
I know. We’ve been told my husband’s grandfathered plan is going to have a huge increase next year. You can’t find coverage that good now. No Obamacare plan comes close. We’re already paying over $900/month for the 3 of us, and we still have to pay out of pocket to see a doctor.
This is going to be the end of the middle class once the employer mandate hits. Because all employers are going to take the tax penalty. There is NO WAY they will be able to afford Obamacare premiums for their employees and families. And those employees are going to have a terrible shock when they climb into the boat with me. Because they DEFINITELY won’t be able to afford it, either. And they’re going to be incensed to learn they’ll still have to pay out of pocket to see a doctor, and face financial ruin if they don’t have a cancer hospital/surgeon in their narrow network.
It’s not conjecture. I’m living it. Article after article has exposed it happening around the country.
We need to fight to make the employer mandate hit before 2016, and stop Obama’s illegal delays of a law that’s supposed to be so wonderful, he won’t implement it until after an election. People have no idea what it’s like actually living with Obamacare. They need to know before the election.
Sounds like yet another excellent argument for Universal health care to me.
On Tue, Jun 3, 2014 at 11:13 AM, JONATHAN TURLEY wrote:
> Karen S commented: “I know. We’ve been told my husband’s grandfathered > plan is going to have a huge increase next year. You can’t find coverage > that good now. No Obamacare plan comes close. We’re already paying over > $900/month for the 3 of us, and we still have to pay out of” >
SWM, Except for a select few, the silence of Dems defending this is deafening. This was an effort to dig outta the VA hole but it turns out the swap was a backhoe, digging deeper.
The NYT is reporting Bergdahl left a note, which the Pentagon has, explaining clearly that he was deserting. If there was any doubt.