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.
I feel nauseated from the anger.
Later.
It’s about a complete disrespect for the law. It’s about a President who is as full of himself as Henry VIII.
What Obama wants to do is possibly, and I do mean possibly, move detainees to indefinite detention/torture on the US mainland. That’s relocating Gitmo, not closing it.
Gotta ask this question of all the followers again. If dear leader is so good and so powerful, why doesn’t he just go right ahead and actually close Gitmo, releasing the detainees that are already cleared for release and charging the others in civil court?
If he’s so blessed of God and all, he could do those things just like he does all the other illegal things. So why doesn’t he? Glenn Greenwald has laid out the conundrum facing Obama supporters–. He’s a king, maybe even a god, you’d really think as long as he was blowing past the rule of law, such a wonderful, good, kindly, just kind a guy would do the right thing. Why doesn’t he?
Back in 2012 the only person reportedly agreeing w/ this deal was John Kerry. He was sucking up BIG TIME for the Sec. of State job.
We, as in the Western world.
Bob, They also both scoffed @ Susan “Baghdad Bob” Rice saying they had to move fast because of Bergdahl’s health.
Sorry, but the whole suspension of habeas corpus without insurrection or rebellion and indefinite detention is something we got rid of with the Magna f’n Carta.
Gitmo is a disgrace.
Bob, Esq – Gitmo seems to be run very well and is within the boundaries of dealing with terrorist, who fall into a different area of the Geneva Convention.
VOA just reported that the Pentagon just announced a “comprehensive investigation” will be conducted. This travesty is causing serious moral problems w/ soldiers and the brass are trying to get ahead of this growing problem.
Paul,
There’s an interview with Saxby Chambliss on CNN and he told Wolf Blitzer this evening that he and Feinstein objected to the trading of prisoners for Bergdahl two years ago.
He says when the Whitehouse called to notify both he and Feinstein on the day of the exchange it was because there was an “oversight” regarding notice.
I forget his exact words but it was something along the lines of “who are they kidding?”
They’re lightweights, Paul.
The plot is even thicker. I have mentioned the prescient Rolling Stone piece from 2012. It was penned by the superb investigative reporter, Michael Hastings. It was Hastings who got Gen McChrystal fired w/ his incredible profile. McChrystal vowed revenge. Hastings died last year in a fiery car crash. It is now revealed that the Holder had the FBI investigate Hastings trying to find his sources for the Rolling Stone article on Bergdahl. Holder LOVES to go after reporters!
“Did Reagan consult with Congress before working his little hostage exchange?”
Iran-Contra?
That’s your legal defense?
Are you for real?
I think the law as written is compulsory, not permissive. He SHALL notify… This is so Congress can through a fit if they want. War includes two branches of the government. The President as C-in-C and Congress who declares and funds the war.
Feynman: “How long has this law been in effect or any similar law regarding the exchange of prisoners?”
It wouldn’t matter if it was ten minutes old. But if you must know, it was also in the 2012 NDAA.
“He IS the Commander In Chief.”
And his powers are checked by Congress and the Courts. So when a law states that the President shall not go it alone, and he does anyway, that’s what we call a violation of law and a violation of the separation of powers doctrine.
“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.”
So the law is no longer as it’s written; but as YOU deem it should be?
Do you hear yourself??!
Bob wrote: Those who adore their King are attempting to cover his tracks for him by lauding Bergdahl as a hero; when not even the Pentagon
No one that I can recall here or elsewhere has called him a hero. Your argument loses strength when you use hyperbole and try to ascribe it to others here who do not agree with you.
Nick, yes it is opinion but it is being presented as fat. I don’t know if these “straight shooters are straight shooters,maybe they are maybe they aren’t they are on TV for a few moments. We don’t know if they have an agenda that colors their perceptions and recounting of their perceptions We don’t know if Bergdahl was psychiatrically ill or why he did what he is said to have done.
I think it is unfair to him and his family for so many to be calling h im a coward, deserter, traitor,etc without proof. (But used in this condemnation of the oresident makes the decision to go get him look really bad, after all seems like a lot of folks here and elsewhere think they should have just left Bergdahl behind.)
I don’t know of anyone here except Spinelli who wants to keep GTMO open.
I vote to keep Gitmo open and add more prisoners. I want to see it turned into a super-max prison.
Word is Obama and Hill discussed this during their lunch. And, she agreed wholeheartedly.
That’s the political operative I know, SWM!! You don’t have squat to play w/ on this but keep shoveling it out there. Hillary will be proud.
I think we were cheering for the release of the POW and the potential closing of Gitmo.