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.
Bob, Esq.
Did Reagan consult with Congress before working his little hostage exchange?
Reagan was not required to consult with Congress. Weak comeback. Typical.
leej, Brave soldiers are coming forward. You have to see these interviews. These are straight shooting guys. They are not anonymous. They’re not using aliases, having their faces and voices changed. To call it gossip diminishes the courage of these brave men stepping forward. Watch the interview of Sgt. Buestow conducted by Jake Tapper. Jake tries to get him into the political dispute and he declines.
Yes, long live Dear Leader–Capitalist PIG!
This is not a Republican or Democratic issue. It is exactly what Bob Esq. delineates very well in his post above. It behoves American citizens to understand that this president, like the Republican president before him, does not respect the rule of law. Instead of supporting and cheering such a man like barking seals before a beach ball, CITIZENS need to reassert the rule of law.
Also, I am dismayed to see so little concern for the detainees in Gitmo. Who have we become that we care nothing about imprisonment without trial and commit torture? Who have we become when we cheer, barking and clapping for a man who orders such things?
Bob, Time just reported the Pentagon and CIA were against this swap. This was politics Chicago style! But, it’s backfiring BIG TIME!
If you lose Time mag, who do you have left to protect you?
on 1, June 3, 2014 at 6:18 pmBob, Esq.
Annie,
“I’m sure that’s all you took away from that interview.”
leej, All people are innocent till proven guilty. That applies to the courtroom and jury. It does not apply to public discourse. That’s pretty basic stuff. We are all free to give our opinions. Because, our opinions don’t mean squat! I will abide the ruling of military court. I detest verdicts sometimes but I respect them. That’s what I did for a living. I had some decisions on cases I worked go very wrong IMO. But, this is a nation of laws and I understand and respect that more than people that have not worked in the system. The attorneys here understand that.
How long has this law been in effect or any similar law regarding the exchange of prisoners?
He IS the Commander In Chief. A prisoner exchange should not be under the control of Congress. And that law backs me up. The president is only to NOTIFY. He does not need their consent.
He left his post and captore on the battlefield are not murtually exclusive. I do not support Obama on everything, there is a lot that has disappointed me but I actually like to wait for proof to be shown not news media stories and essentially gossip, speculation and supposition, (which is what your post sometime back, to which my note as responding)
Annie: “Bob, if you had actually read my words (instead of putting words in my mouth) you would’ve noted I never said that Bergdahl’s exit from his unit was correct.”
Please show me what words I put in your mouth.
leejcaroll: “Bob, that was all speculation and supposition. In America we require, or used to, proof rather then people’s impressions.
I don’t know if this guy was ill or deserter etc. I do know he is an American Those against, should he just have been left behind ?”
Leejcaroll,
Innocent until proven guilty. The man wasn’t charged with desertion because the Pentagon couldn’t prove intent without his presence.
However, there are those who are so enamored of Obama and their party that they don’t seem to mind that the President not only broke the law but violated the separation of powers doctrine.
There is a reason that the President was required by law to notify Congress before making a prisoner exchange.
It’s not HIS country. Obama is not empowered by the divine right of kings.
This is the reason we have a separation of powers specifically enumerated into three branches.
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” — Federalist 47
Those who adore their King are attempting to cover his tracks for him by lauding Bergdahl as a hero; when not even the Pentagon
Susan Rice went on the Sunday talk shows and said that Bergdahl “wasn’t simply a hostage; he was an American prisoner of war captured on the battlefield.”
There is now an AP report that states a 2010 Pentagon inquiry found incontrovertible evidence that Bergdahl left his post.
That is not “capture on the battlefield.”
Yet to cover for Obama’s exercise of royal prerogative, treating the constitution as a urinal puck, let the word go forth that Bergdahl is a Hero and therefore Obama can do no wrong.
Long live the King.
I had thought the matter of torture was why there are no trials. Evidence obtained under torture is inadmissible.
You got me Max.
Nick you agreed me with a long time back up on the thread that people are innocent until proven guilty but you continue to call him a deserter and worse without proof, only speculation and supposition,.
Nick
IMO, your ability to present a balanced neutral dispassionate assessment of any issue concerning Obama or any Democrat dating back to the first year of FDR is zero.
As to snitches? Who get deleted? Those on the right? Or those on the left?
Leejcaroll
What does the Law say about holding individuals for an indefinite period of time because charging then hinges on how you tortured them?
Hold the presses, stop everything!! There are political machinations going on. When you trot out the parents of a deserter for a photo op in the Rose Garden, after making a swap w/ bipartisan opposition, violating the law, well I wonder who started the political horse manure. I didn’t say horsesh!t because I didn’t want the snitches emailing JT during dinner. Oh, and this was all timed because Obama is getting g=buried in the press on the VA. Yeah, only Rep are playing politics on this. It’s DC!! It’s all politics all the time. I thought you were a political operative, SWM!!
Wait! Wait! Someone to the right of Ghengis Kahn invokes the Geneva Conventions?
The republicans rarely wait to come out against anything this president does. Maybe I would give them more attention if they had waited a bit to understand what was done, how it was done, etc but if the President does it they come out agaist even when have been previously for (and not jjust with McCain here but on many issues)
swarthmoremom
Heavens! You mean the return of Bergdahl has been politicized? Well I nevah.