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.
What Excuse Remains for Obama’s Failure to Close GITMO?
https://firstlook.org/theintercept/2014/06/03/excuse-remains-obamas-failure-close-gitmo/
didn’t they try 2 guys in NY just recently?
http://cdn.memegenerator.net/instances/400x/34642609.jpg
Reminds me of a book….
Oz, the Great and All Powerful.
I was waiting for Saxby Chambliss – the epitome of integrity and respect for veterans. He is the guy during his run for the Senate who questioned the service of Max Cleland who lost three limbs while in Viet Nam.
Who here respects Saxby Chambliss? And funny, I NEVER would have thought I would see the day Nick would cite Feinstein for support.
Is it the Rapture?
You fringe folks are playing defense. You need to start doing your homework. Although, I’m taking it all in and NOTHING looks good for you outliers. I know MUCH more than all of you on this topic. “Knowledge is power.” I would say that to my students often.
Feinstein just stated along w/ Rep Saxby Chambliss that Obama “broke the law” by not consulting about this swap. Feinstein said she Is dismayed. They both say that there is “no evidence” that Bergdahl was in physical distress as Susan Rice lied saying on the Sunday shows. When you see Rice on Sunday assume she’s lying! This was the ranking Rep and Dem of the Senate Intelligence Committee standing side by side saying the Administration broke the law and lied.
May I take this opportunity to ask Nick to correct his comment said to me that I wanted vets to die?
“The CIA Can’t Control the Truth at Guantánamo Forever”
by Marcellene Hearn
06/02/2014
https://www.aclu.org/blog/national-security-human-rights/cia-cant-control-truth-guantanamo-forever
“The government is continuing to fight on various fronts to keep its torture program secret. It’s not going to win.
Last week I watched the televised feed in the latest round of pre-trial hearings in the death penalty case against Abd al-Rahim Hussayn Muhammed al-Nashiri for his alleged role in the bombing of the U.S.S. Cole.
The hearings focused on the information the government must give to Mr. al-Nashiri’s lawyers about his secret detention and torture at the hands of the CIA. Even though the world knows the CIA tortured Mr. al-Nashiri – in part from an internal CIA report released to the ACLU in a lawsuit – much concerning the CIA’s treatment of him, other military commissions defendants, and potential witnesses remains secret from his lawyers and the public.
Last month, Judge Pohl ordered the government to turn over to Mr. al-Nashiri’s lawyers detailed classified records from his “four-year odyssey” through the CIA’s rendition and torture program. Unfortunately, the government is asking him to roll back the order. In another related request, Mr. al-Nashiri’s lawyers are seeking a Senate investigative report that is the most comprehensive accounting to date of the CIA’s torture program.
Mr. al-Nashiri’s lawyers need this information to meaningfully represent their client. They will argue that statements Mr. al-Nashiri made to so-called clean teams at Guantanamo after he spent 4 years in CIA detention must not be used. The defense will also argue that the government absolutely cannot execute someone it has tortured. How can the attorneys do their job, if they don’t have all of the information?
In addition, as much information as possible about the CIA’s torture program must be made public. Basic requirements of transparency, accountability, and human rights demand more openness.
The executive branch could address many of these issues by releasing expeditiously the summary, findings, and conclusions of the Senate’s torture report, which it is currently reviewing for declassification. It would do even better to release the full 6,000-page report.
That would have immediate effects on the commissions proceedings, including:
Clearance of logjams: The prosecution would prefer to provide defense lawyers with summaries and other substitutions for the classified documents covered by Judge Pohl’s order. That’s unlikely to be adequate in this capital case. With declassification, the relevant information could be shared promptly with defense council and with Mr. Nashiri so that he can participate more fully in his defense.
More pre-trial proceedings held in the open: During this session alone, the public was shut out of nearly three hours of argument concerning the prosecution’s challenge to Judge Pohl’s order. Secrecy undermines our tradition of public access to judicial proceedings.
Fewer oblique witness statements: Last month, Dr. Sondra Crosby, an expert on torture, testified about whether Mr. al-Nashiri is receiving adequate medical care. In her public testimony, she could only say that she saw scars on his body consistent with allegations of torture – but not what those allegations were.
One way or another, transparency will be achieved. The summary of the Senate report will be released, hopefully with few redactions. By June 20, in our lawsuit seeking the release of CIA torture reports, the agency has to provide a specific timeline for declassification. In the meantime, Judge Pohl will soon decide whether to reject the government’s request to reconsider his decision. The government won’t be able to keep its torture secrets forever.”
NEVER have I said we should have left Bergdahl there. That’s a lie! I have said we paid MUCH too high a price. I said Obama got snookered. I want this guy to return and face the brave, real soldiers he betrayed. I ALWAYS abide verdicts from courtrooms. That was my business. I criticize but respect the rule of law. That’s more than Obama does.
Jill calls President Obama “their dear leader” in talking about those that support him.
Jill, In this country we respect the outcome of an election. President Obama is the president of all of us, like it or not. Saly until this president it was one thing for which we were respected around the world. No matter how vicious the campaigns at the end we would come together and accept the outcome. This is the first time I have heard ‘the other side’ constantly say ‘your president’ “he is not my president etc” A true American understands our system and jhow it works. ”
IISSUE WITH SIGN IN;
t made me sign back in and then showed page that said ”
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Not sure if there is a problem.
Jill, We are on the same page except for Gitmo. I have stated here MANY times I do not abide torture. However, I do believe Gitmo should remain open because bad people like we just released are going to kill more US soldiers and innocent civilians. They should be tried and sentenced.
What is even more shocking is that here are those who seem to be saying we should’ve left him there. The credo is ” No man left behind”. EVERY SINGLE troop who served with Bergdahl said as much. The Army will deal with Bergdahl as IT sees fit, when it’s investigation is completed. For those who want to hang him from the yardarm, they will just have to be patient. What will they do if they do if the Army doesn’t find him to be a traitor, but simply a deserter? Or worse yet for those calling for his blood, someone who was mentally ill? Will they be depressed?
Nick,
I am fully aware that the govt. is lying. They’ve got everyone talking about the wrong issues. The military has it’s own investigators and court system. I’m certain they can sort out what happened.
What is much more important is that the president is detaining and torturing other people in Gitmo and is behaving as if the rule of law does not matter (which I agree, it doesn’t matter any longer in the US). Meanwhile, we have citizens who love to cheer him right along.
Until citizens return to acting like citizens instead of worshippers at a clay idol, we will never return to the rule of law in this nation.
As I am among the fringe and marginalized, I’ll assume Nick means me when he says “some” here believe that Bowe served with honor and distinction.
In order to keep all Nick’s records straight I’ll write what I believe about Bowe. He was an unstable young man when he was allowed to enlist. It was wrong to let him enlist. I doubt he served with honor or distinction (wasn’t he only there for a month?) but think that’s what the military says when someone is a POW for 5 years. I’m okay with an inquiry. I am glad he is home. It was honorable to bring him home. He was a member of the military and we are obliged to bring them ALL home. Period.
Jill, The Obama administration did not call Bergdahl a POW until AFTER he was released. They knew he was a deserter and possibly a traitor.
Jill, There IS MUCH actual information. It is not being provided by the Obama administration. But news sources are presenting it. Go to the CNN website and watch Jake Tappers interview of Sgt. Buestow. Read the Rolling Stone piece from 2012. There’s MUCH info that Obama doesn’t want you to know.
Anyone who watched the interview of the honorable Sgt. Buestow and only takes away the perfunctory “He is an American citizen and I’m glad he’s home” is dishonoring EVERYTHING else Buestow said and dishonoring all the real soldiers who were apparently betrayed by Bergdahl. It is shocking. If you haven’t seen the interview, I urge all to watch it and see if the “He is an American citizen..” is what the interview is about!!
We do not yet have the full story concerning Bergdahl. Until there is actual and full information about what happened there I will reserve saying anything except that if he was a prisoner of war, even if he was a deserter, I am glad he is back home. It is also possible that the whole story is a limited hangout for the government.
So what do we know? We know that Obama is breaking the law in illegally detaining people at Gitmo. Offering to detain them illegally in the US is not better, it is still illegally detaining people indefinitely w/o a fair trial.
We also know that Obama has broken the law and ignored Congress yet again as the imperial president.
Sadly, what we also know is that Obama supporters are willing to lie, watch the Constitution shredded and don’t give a rats as– about anything other than mindlessly supporting their dear leader. That is a very sad state of affairs for the US people.
So I am wondering when many of the same people I watched excoriate Bush are going to get back to principles over belief in a leader and start behaving as if they were real citizens and the rule of latter matters to them.
That means in practical terms: 1. call for the immediate release or fair civilian trial of every detainee and it means calling for the impeachment of dear leader.
This is what I, a “caring parent” of a Navy member since 2002 think:
on 1, June 3, 2014 at 4:23 pmAnnie said…
“Looks like the young man on Tapper just said, “He is an American citizen and it’s great he is back”.”