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.
Okay, 600 lashes and a possible death by the felon’s noose might be a bit over the top.
But how would Eisenhower have handled it?
It’s interesting to imagine what Gen. George Washington would have done about Bergdahl.
Exactly Leej.
Bob, you make assumptions. I can’t help what you think, I can ONLY tell you that you are mistaken.
McCain’s reversals on Bowe Bergdahl
U.S. Army Sgt. Bowe Bergdahl has been held by a group with ties to the Taliban for almost four years, and the group has demanded the United States release five Taliban prisoners in exchange for him.
The Washington Post reported that U.S. officials confirmed that talks among diplomats and the Pentagon were under way. The official U.S. policy is not to negotiate with terrorists, but the military is winding down operations there by the end of the year and could risk leaving Bergdahl behind, CNN noted.
McCain said his stance has changed only because the previous proposal was to release five “hard-core” Taliban leaders as a “confidence-building measure.” The current proposal would be an actual exchange of prisoners. “I would be inclined to support such a thing, depending on a lot of details,” he said.
Update: Asked specifically by CNN’s Anderson Cooper about the prospect of a 5-for-1 prisoner exchange, McCain replied, “I would support. Obviously I’d have to know the details, but I would support ways of bringing him home, and if exchange was one of them, I think that would be something I think we should seriously consider.”
That was in February.
Anything the president does, if they are for it once he does it they are against. Sickening
Bob,
To make it perfectly clear. “Just” meaning just then, that moment in time, NOT meaning ‘only’.
Annie,
I’m sure that’s all you took away from that interview.
*Buetow’s*
Yes indeed Bob, I watched it live and those where Bietow’s words. I typed that within seconds of him saying it.
leejcaroll ,
You really didn’t look very hard then. As for the current president, I believe they all should be raked over the coals when they are bad.
Anyone remember the Bush shoe throwing incident? Almost got him. Learn to duck when your out of luck.
Annie: “Looks like the young man on Tapper just said, “He is an American citizen and it’s great he is back”
Seriously??
The team leader, Evan Buetow, recalled to CNN’s Jake Tapper that Bergdahl “did not agree with the war effort in Afghanistan” and had said various things that, in retrospect, led him to believe the soldier had “walked away.”
“It was a gut feeling I had,” Buetow said Tuesday. “… When he comes up missing and all of his sensitive items are left behind, it just kind of hit us in the head.”
At least six soldiers were killed in subsequent searches for Bergdahl, according to soldiers involved in operations to find him. The Pentagon was not able to provide details on specific operations in which any soldiers killed during that time were involved.
Also, many soldiers in Bergdahl’s platoon said attacks seemed to increase against the United States in Paktika province in the days and weeks following his disappearance.
Buetow conceded that he and others may never know if this violence was coincidental or if Bergdahl had given his captors — voluntarily or after being tortured — information. Yet he found it “incredibly suspicious” that attacks after Bergdahl disappeared seemed to become “far more directed.”
As to those U.S. soldiers who died, Buetow said, “Those soldiers would not be on those patrols, in those specific areas when they were killed, unless Bergdahl left. And that’s a fact to me.”
Read more: http://www.wbaltv.com/politics/Army-will-review-Bergdahl-s-circumstances/26302550#ixzz33cHQVYUV
Jim I never heard or read the kind of things said about this president used against Mr Bush, I never heard him cakled “your president: or people say :He is not my president. It is funny how you ignore that and just say well people were mean about Bush (paraphrasing)
(and we won’t even get into the racial of lynching him in effigy, using the “n” word, etc)
eejcaroll – “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. ”
Good grief! I love the hand holding kumbaya picture you paint about how you all treated President Bush. It really is amazing how you lib’s can rewrite history. you really need to look in the mirror when it comes to “treating” the President.
Yep Feynman, the repubs and those on the right conveniently forget what goes against their prejudices against this president.
Jil Did you have a problem with Bush torturing those at Gitm: http://www.cnn.com/2009/US/01/15/guantanamo.torture/index.html?eref=time_world
Bush official says Gitmo detainee was tortured
Jill wrote: What is much more important is that the president is detaining and torturing other people in Gitmo . He is just sadly continuing what Bush started. (Of course Cheney said waer boarding wasn;t torture so it was okay.
ISecret Bush Administration Torture Memo Released Today In Response To ACLU Lawsuit
“In the memo released today, Yoo writes: “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network.” The memo goes on to say, “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
https://www.aclu.org/national-security/secret-bush-administration-torture-memo-released-today-response-aclu-lawsuit
leej
Many more would have been tried if it weren’t for the terrified Republicans who said we would all wind up dead if we brought any Gitmo prisoners to NY for trial.
Max Nick said 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.
Some have been,
“Knowledge Is Power”. Is there anything that is more self revelatory than that?
Leejcaroll
Yes they did. In fact a Fed Court found OBL’s son in law guilty.