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.
It looks like, that as per usual, folks have dug in on this one. First, let me direct anyone who has an open mind to the superb Rolling Stone piece done on Bergdahl from June 2012. It leaves little doubt this guy was a deserter @ best, a traitor possibly. Then, please go to the Army Times Facebook page and read accounts from soldiers WHO SERV ED w/ him. These brave soldiers, men and women, use their real names, not aliases.
When you are a guard in a prison you are told there are no hostages. I was told this my first day working @ Leavenworth. If inmates take control of you, go to the front gate w/ a knife @ your throat, and demand the gate be opened, the gate will NOT open. If they bring another guard up and demand again, the gate will not open. This rule seems cruel to those who don’t understand evil men and the protocol required to not let them rule. You see, the first time that gate opens, ALL GUARDS are chattel. The inmates, knowing the gate will not open, keeps all the guards safer. You’re never safe in a prison or war zone. But you are safer. Soldiers are told the same as guards. You are not a hostage. I learned something I didn’t know watching Fareed Zakaria yesterday. US diplomats are also told they are not hostages.
If you bother to read the June 2012 Rolling Stone piece you’ll see this exact deal was in the works then. It was an election cycle. Team Chicago was called on doing this for political purposes and they backed off. Gwen hit the nail on the head as to the timing now. It’s political, the VA scandal. Does anyone see any symmetry to the administration sending out their blindly loyal Susan Rice on the Sunday Morning shows? When asked about violating the notification Rice stated, “The Defense Dept. and Allied soldiers would be incarcerated, she sounded like she had a stuttering problem. The word she used was “monitored” several times.
The men and women who served w/ Bergdahl say he should be transferred to Ft. Leavenworth to await his trial. I agree. Those 5 Taliban killers will be back in Afghanistan while US troops are on the ground. They will kill more of our soldiers. You can bet on that.
As was pointed out on a news show this a.m. Israel has been doing thi for years. As someone much farther up pointed out a lot of gossip and speculation without known facts to back it up and let’s say the worst, this gy deserted, so we leave an American beind and wash our hands of him?
Congress has known for some time “Lawmakers’ surprise fueled their confusion and skepticism about the deal—especially since the on-again off-again negotiations for Bergdahl were an open secret, dating back years GOP leaders, in particular, were offended that they received calls from their Democratic counterparts and administration officials only after Bergdahl’s release was reported in the news
“http://www.thedailybeast.com/articles/2014/06/02/bergdahl-deal-could-be-first-(so they are lik ekids, seems there anger is more because no one called them until after.step-to-emptying-gitmo.html rather then even an issue of the law)
“Negotiations and internal deliberations over the potential for a swap have waxed and waned for years, but they intensified in the past several weeks as an agreement appeared within reach, according to an official familiar with the matter.
Among other complications, there was a potential legal obstacle: Congress has imposed statutory restrictions on the transfer of detainees from Guantánamo Bay. The statutes say the secretary of defense must determine that a transfer is in the interest of national security, that steps have been taken to substantially mitigate a future threat by a released detainee, and that the secretary notify Congress 30 days before any transfer of his determination.
In this case, the secretary, Chuck Hagel, acknowledged in a statement that he did not notify Congress ahead of time. When Mr. Obama signed a bill containing the latest version of the transfer restrictions into law, he issued a signing statement claiming that he could lawfully override them under his executive powers.
“The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers,” he wrote in the signing statement, adding that if the restrictions “operate in a manner that violates constitutional separation of powers principles, my administration will implement them in a manner that avoids the constitutional conflict.”
An administration official said the circumstances of a fast-moving exchange deal made it appropriate to act outside the statutory framework for transfers.
The top Republicans on the House and Senate Armed Services Committees, Representative Howard McKeon of California and Senator James M. Inhofe of Oklahoma, said the release of the Taliban prisoners “clearly violated laws” governing the transfer of detainees from Guantánamo Bay. One senior administration official defended the decision, saying that “due to a near-term opportunity to save Sergeant Bergdahl’s life, we moved as quickly as possible,” requiring action outside the notice requirement of the statute.”
http://www.nytimes.com/2014/06/01/us/bowe-bergdahl-american-soldier-is-freed-by-taliban.html
So the heck with it, if there is a quick occurring opportunity to get back one of our guys held hostage no, have to deal with a proven obstructionist congress that has refused to do almost anything this president has asked of it an the American hostage can go just sit and languish more?
leejcaroll – the administration is all smoke and mirrors. They have been dickering for this guy for some time. This is not sudden and it is against the law.
http://www.thedailybeast.com/articles/2014/06/02/we-lost-soldiers-in-the-hunt-for-bergdahl-a-guy-who-walked-off-in-the-dead-of-night.html
Does the ends really justify the means?
What will be– or will there be — a tipping point for Obama?
…seems like the EPA will now have more power than Congress!
We will soon be governed by beurocrats and not elected officials…
http://www.theguardian.com/world/2014/jun/01/republicans-bergdahl-release-deal-encourages-terrorists “Republicans have lambasted the White House for releasing five Taliban leaders in exchange for Sergeant Bowe Bergdahl, saying the “dangerous” deal violated US policy on not talking to terrorists and may have broken the law.
GOP leaders rounded on the Obama administration on Sunday, accusing it of bypassing Congress and of encouraging terrorists to seize other US service members as hostages.
Susan Rice, Obama’s national security adviser, appeared on two talk shows to mount the administration’s defence of the decision. She justified the swap and the decision not to inform Congress of its imminence in terms of a “sacred obligation” to leave no US soldier behind.”
Just get our soldiers home from Afghanistan. As many as possible, or all of them. Captives included. Then deal with the cases like this one. Obama did the right thing.
http://www.msnbc.com/rachel-maddow-show/release-american-pow-sparks-partisan“Under normal circumstances, when U.S. officials secure the release of an American prisoner of war, it would seem like a happy occasion for the country, regardless of political considerations. We were reminded over the weekend that these are not normal circumstances.
President Obama announced on Saturday that Sgt. Bowe Bergdahl, the only American soldier held captive in Afghanistan, was finally free after five years as a prisoner of the Taliban, In exchange for his release, U.S. officials agreed to release five Taliban prisoners from Guantanamo Bay to Qatar.
In his White House announcement, the president said, in reference to the Taliban detainees, “The Qatari government has given us assurances that it will put in place measures to protect our national security.”
The complaints from congressional Republicans were immediate.
Amid jubilation Saturday over the release of U.S. Army Sgt. Bowe Bergdahl from captivity by the Taliban, senior Republicans on Capitol Hill said they were troubled by the means by which it was accomplished, which was a deal to release five Afghan detainees from the military prison in Guantanamo Bay, Cuba.
Top Republicans on the Senate and House armed services committees went so far as to accuse President Obama of having broken the law, which requires the administration to notify Congress before any transfers from Guantanamo are carried out.
Throughout the weekend, prominent GOP lawmakers condemned the move with varying degrees of outrage. Several Republicans described the policy that led to Bergdahl’s release as “shocking,” “disturbing,” and “dangerous.”
Any sense of national joy that might otherwise come with the knowledge that an American POW is on his way home disappeared within minutes of the announcement – Bergdahl’s freedom quickly became the latest partisan fight, and the prospect of congressional hearings are more a matter of “when,” not “if.” “
This is simply silly. I find it hard to give much weight to those who object since the law supposedly violated goes against the powers of the President as Commander in Chief regarding POWs. It is like Congress banning the punishment of Republican soldiers. Think that would be Constitutional?
While the US may call the Taliban terrorists, they are a FAR different case than when Reagan gave actual arms, and money to Iran. The hostage holders were in a DIFFERENT country than Iran and were non-state terrorists who had no recognized legitimacy in international law. The Taliban on the other hand was a legitimate government who the US recognized and we even gave them diplomatic recognition. Thus they are legitimate combatants under all laws and tradition. Think that Congress can change that by simply making a declaration and banning any negotiation limiting the Presidents powers to conduct foreign affairs? From what I recall, the law was passed to keep the prisoners in Cuba and to keep them out of the US, not to ban them from ever being released. Thus one cannot blast Obama for not closing Guantanamo when it is Congress which has said that he cannot transfer them anywhere unless Congress approves. He would be in violation of the law if he simply sent them to NYC for trial as the law prohibits. It is quite another thing to say he has no control over the administration and release from all US custody for these POWs. Let’s discuss some real problems instead of GOP talking points which have no validity in law or reason.
Chuck Stanley 1:am Well said.
As a side note, Obama has pledged to close gitmo. Congress has blocked him. Maybe this approach will help. It’s too bad there aren’t more pows so gitmo can be totally shut down. btw, the detainees who were released were never charged with a crime so pow seems to me to be a fair status.
This is a win-win-win. It sounds like a young man realized that he had made a horrible mistake and was willing to take huge risks to leave the conditions he was in. Many believe that Guantanamo inmates are kept only so that they don’t publicize the way they were tortured by Americans. The world is fully aware of US torture. Six men have their lives back. Hopefully they will be able to move forward in constructive endeavors. President did the right thing. Congress lacks any credibility whatsoever.
http://talkingpointsmemo.com/livewire/jay-carney-bowe-bergdahl-not-hostage ”
White House Press Secretary Jay Carney on Monday pushed back against the idea that the United States negotiated with terrorists to secure the release of Army Sgt. Bowe Bergdahl, who was held prisoner in Afghanistan for nearly five years.
On CNN’s “New Day,” host Chris Cuomo asked Carney to expand on Defense Secretary Chuck Hagel’s assertion that exchanging Bergdahl for five Afghan detainees held in the Guantanamo Bay facility did not amount to negotiating with terrorists.
“Why parse words and have the secretary of defense say we didn’t negotiate with terrorists?” Cuomo asked.
“The fact is he was held in an armed conflict,” Carney responded. “We were engaged in an armed conflict with the Taliban, and we have a history in this country of making sure that our prisoners of war are returned to us. We don’t leave them behind. He was not a hostage, he was a prisoner.”
The Obama administration’s national security team decided to move forward with the deal because the threat posed by the detainees who were traded for Bergdahl was “sufficiently mitigated,” Carney added. Asked to clarify how that threat was “mitigated,” Carney said the detainees would be monitored by host countries and placed under travel bans.
Cuomo also brought up speculation that Bergdahl may have walked off his post when he was captured by the Taliban. He asked Carney if the possibility that Bergdahl was a deserter should have factored into the administration’s decision to broker a deal.
“Here’s what matters. He was a prisoner in an armed conflict, a member of the military, and in that situation the United States does not leave its men and women behind,” Carney replied. “And for five years, we’ve been engaged in an effort to try to secure his release and we were very fortunate to do that this weekend.”
Chuck Stanley:
Thanks for your honest evaluation of the predicament.
In my view, a box of rocks is way too intelligent to find fault with Obama for his efforts directed toward solving an impossibly difficult problem.
For those who are shocked by trading prisoners for prisoners, may I respectfully suggest you try reading some history. This is not new. Governments and military have done it from time immemorial. I remember grainy black and white newsreel film of the US military releasing a Soviet spy in order to get one of ours back, the two men passing each other on a bridge, walking in opposite directions. I didn’t take a lot of time, but with a relatively quick search, I could not find a single war in which there was not some kind of prisoner exchange. Sometimes low level, sometimes high level. Every President has had back channel communications with the other side for such exchanges. This is commonly done by third parties, through neutral countries. For those to act as if Obama is the first are either deliberately obtuse in playing politics, or are dumb as a box of rocks.
Who knows what Bergdahl was thinking, or if events even happened the way some people claim. As for the Guantanamo prisoners being dangerous, let me put it this way. If I had been a prisoner at Guantanamo, I would be one of two minds, and not likely to have any grey areas in between. I would either become 1) fearful and shell-shocked, wanting nothing more to do with Americans; or, 2) one of the most dangerous people ever, wanting revenge. As for these alleged terrorists, I have no idea of their mind set, since I was not one of the unethical and unprofessional psychologists involved with their captivity. And I might add, the US government does not have enough money to hire me for such a job.
I use the word “alleged” advisedly. The Guantanamo prisoners were never tried, and no evidence against them was ever tested in a court of law.
The Administration negotiated with terrorists, trading five very dangerous individuals for what is likely an army deserter. In addition, five American soldiers lost their lives searching for Bergdahl. Ultimately, the Obama Administration is faced with the prospect of new terrorists acts by the five released and the trial of the returned soldier.
Were the law as espoused and the law as in use not sometimes in seemingly irreconcilable conflict with each other, I would be able to accept the notion to the effect that a living human person can, by mens rea and actus reus, actually and factually be law-abiding.
Once we have a system and a structure of laws of such unfathomable complexity as to make it apparently impossible to know, without error, how a judge will decide the law in a case that has details never before encountered in any case of law, does not the law demand of living humans that the absolutely-impossible be accomplished to avoid a subsequently imposed forfeit?
For myself, I have chosen to study the law and the rule of law as a property of human neurobiology and human neurophysiology.
Ever since, in my age of early childhood, the rule of law came to my conscious attention, I have repeatedly observed the law to be a system and structure of “double binds” in the sense of “double-bind” the work of Gregory Bateson and others; and having done so before Bateson published his work on double-binds.
Because I have never learned to think in words, word combinations which contradict theselves internally are always unintelligible to me.
Not every human person is sufficiently intractably and utterly autistic as to be able to live in the manner of a newborn human infant for more than thee quarters of a century.
However, I find that I have been at least that profoundly autistic from since before I was born in 1939.
The neurological mechanism of double binds is, in my view, both the proximate and the ultimate cause of all forms of purportedly willful human destructive violence, including all forms of addiction and including all forms of criminal conduct.
When Presidents care for laws more than humans and we praise him for it, it is we who break the law of human decency. Maybe our next President will seek Congressional approval for such an exchange, if it should ever need to happen again. Maybe the captors will be miffed about the wait once the deal was done and decide to behead the prisoner instead.
In the fog of war, caused by the lust for power, it is difficult to tell who is the frog and who is the coyote.
————————————
Coyote and Frog (Native American)
Coyote and his friends walked to a pond
But found Frog and his clan now living there.
“This pond is small for all of us, ” Frog said.
“ Find water of your own. We cannot share.”
“If you will let us drink our fill and bathe,
I’ll get you a warm blanket and a blue stone
That’s bigger than your fist, ” Coyote offered.
When Frog agreed, Coyote went for them alone.
Frog took the gifts and led them to the pond.
Later as they left Frog laughed, “Good trade! ”
In fact, Coyote stole the gifts from Thunderbird,
Now furiously tracking prints the thief had made.
Coyote returned next day to find the Frog clan dead.
He took his people to the pond. “Good trade, ” he said.
Jim Mohn,
To answer your question more directly, Ralph Peters was a Lt. Colonel assigned to intelligence operations. He now works at Fox News.
When in the Army, he was an intelligence officer for ten years. His last assignment was to the Office of the Deputy Chief of Staff for Intelligence. After leaving the Army, he became a Foreign Service officer. He wrote a lot of opinion pieces that were ‘strongly worded’ to put if mildly.
Overall, I would venture to say he–and his ideas–were influential at high levels. Unfortunately.
@Rcampbell “Can you just imagine the political circus of that alternative scenario?”
Exactly. I have no doubt that if Bergdahl had been left in Afghanistan, Obama’s failure to bring him home would become a rallying cry by the republicans in 2016.
As far as letting the five Talibani go: no problem. We’ll track them down with drones.
As for the President breaking the law: It turns Hillary was right, we didn’t know enough about this guy.
Who said only an idiot would follow the law?