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://m.quickmeme.com/img/45/45e6b1e3ab4dac6458790e3f8c5d5460dadfdf2cd0be5546756069523f81330d.jpg
Feynman.
Concerning leej’s comment on which servicemen and women we might rescue….
Gee. That may prove interesting for the people who always approach service men and women and thank them for their service… They might have to start asking for their service records before just thanking them willy-nilly.
Intelligent people assess all types of data. They don’t ridicule data that is counter to their prejudices or mindset. The new book by the Freakonomics dudes, How to Think like a Freak, suggests the 3 most important words we can say are, “I don’t know.” In our self absorbed, narcissistic, biased culture, those words are seldom heard anymore. I ALWAYS want to know what other people think. Polls tell us that.
Here are other polls of the American public…..
33% of Americans do not believe in evolution.
60% of Republicans do not believe in climate change.
20% of Americans believe vaccines cause autism.
Here’s an idea! Let’s run the country by polls!
Annie – Who didn’t get an equal chance? Or is there really such a thing? You had certain advantages over your peers all through your life as I did also. I just choose not to feel guilty about it. I’d just rather take my advantages and do the best I can and help others on my terms and not have the govt do it for me. steeling from some to give to others only makes the stolen from resent the takers. Giving people stolen property from others only detaches them from where the handout came from and makes them less responsible. In the end, I believe people will help people. I sense, you don’t believe that people will do this on their own. I give blood every chance I can, I donate my Thanksgiving to feed people at the local mission (Run without a dime from the govt.), I spent countless hours as a volunteer fire man. My brother, who is as conservative as they get, just recently opened his home up to a foster child who had her teeth pulled out by her uncle. So I get a little annoyed when people imply that conservatives are racist, greedy, women haters. I do agree that minimum wage harms our society. Raising it will is mean lay-offs and it keeps the people who are working from searching for something better.
John
Go ahead and impeach. It will be the end of the Republican Party. And the few sane ones know that. That’s why they don’t impeach Obama.
1…2…3….4…
waiting for Paul S to repeat his same ol’ refrain.
Congress didn’t find the AG and the IRS in contempt. The House did. And it is run by crazy people.
The President released the Taliban’s military general staff to obtain the freedom of a known deserter??? Putin takes Crimea. China takes the South China Sea. The government takes over the healthcare industry. The Constitution is regularly circumvented to the “tipping point.” The IRS is used as a political weapon. Benghazi is a “cover up” employing a lie. The AG and IRS are held in contempt of Congress. And on, and on.
That dudn’t make any sense.
America has no leader.
America has been fundamentally transformed into a state of incoherence.
The Articles of Impeachment increase on a daily basis.
I’m proudly marginalized!
I’m sure there are lot of small minorities that you don’t agree with. Are you pushing that they should be the rule?
Here’s another thing about that law. The president does not require the Permission of Congress. He was to advise them.
In 2012 60% of Americans did not want same sex marriage.
BTW. Should presidential decisions be determined by poll these days?
Jim, your assertion that I want everyone to be equal is fallacious. My comment regarding equity is in giving people an equal chance to be earn a living wage. No one expects the owner of a business to earn the same amount as is employees. Minimum wage harms our society overall. When employees have a living wage they spend it on essentials, putting more money into the economy. The less they spend the less profit for the owners of those businesses they purchase from.
comments lost
Well, his old man learned Pashto.
I thought we didn’t negotiate with terrorist? But, glad she’s safe now.
Annie – Have you given up everything you own or have to the needy for the sake of being equal? What right do you have to draw an arbitrary line that says what you have you deserve but not for others? How do you live with the guilt of all of the advantages you have had in your life stepping on those below you to get where you are now?
Now see? this is what really ticks me off. Jim, Nobody was speaking of giving up everything or all of your advantages. That’s why discussion with the Right is so frustrating. I say Tan; they insist I said Brown.
No Jim, not all you have, and not just Jim. From the point of view of the average poor or middle class person; they don’t want what you have even though I know you believe they’re all out to take away your “Precious”. Most wouldn’t have a lot of excess wealth if you offered it to them and wouldn’t know what to do with if they got it.
What they would like is to live in a clean and decent home; pay their bills every month; feed their kids healthy foods; go to the doctor when they need to and maybe have a bit left over to enjoy a hobby or recreational activity they like.
You would be surprised how modest their demands really would be. Of course that life of eating cold, squirmy things in the bowels of the earth has left you suspicious and obsessed with your Precious” (Gollum).
On Tue, Jun 3, 2014 at 2:47 PM, JONATHAN TURLEY wrote:
> Jim22 commented: “Annie – Have you given up everything you own or have > to the needy for the sake of being equal? What right do you have to draw an > arbitrary line that says what you have you deserve but not for others? How > do you live with the guilt of all of the advantages” >
Facts are exposing the fringe here, as they continue to marginalize themselves.
70% of US citizens do not want to close Gitmo, including 53% of Dems. ABC WashPo poll Feb. 2012. I don’t want it closed. Only the fringe want it closed.
Democrats are leaving Obama out to swing in the wind. When this deal was floated in 2012 DEMOCRATS told Obama these 5 should not be released as long as US soldiers remained in Afghanistan. They had killed US and Allied soldiers. One of them is wanted by the UN for war crimes, killing thousands of Shiites. They machine gunned to death over 50 girls in a school because girls should not be educated.