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.
The “outrage” and “offense” of the facts laid out here are sad, but expected.
Talks about an exchange have been going on since 2010.
1.Karzi’s brother tried to broker a deal for 25 prisoners and $20 Million for Bergdahl.
2. Congress knew about this for the past couple years and there was bipartisan objection.
3. The NYT ran a story a year ago with the names and pictures of the 5 Taliban released.
Obama couldn’t get this done by following the law because it was those who are capable of rational thought knew it was stupid. So, as usual, Obama just bypassed the law.
Susan Rice (of all people) and Chuck Hagel said they “had to act” because of his “deteriorating health.” Army physicians have reported Bergdahl in good health. (I guess they just pulled out the Jessica Buchanan rescue story, which was legit, rinsed it off and replaced Buchanan with Bergdahl.)
He’s a deserter. He sent his personal effects home before he walked off the base. He sent emails to Pashto speaking daddy how he’s “ashamed to be an American.” He asked his Sgt. if it would be a “big deal” if he left the FOB with his rifle and NVG’s. He deserted.
6 men from the 501st were killed looking for him. A DEVGRU team leader was shot in the leg with a PKM on an OP trying to find him. How many other American Warriors were killed or wounded because Bergdahl decided he was “ashamed?” How many were killed or wounded capturing the 5 we just gave up?
It’s combat, actions have consequences. Bergdahl chose to act like a spoiled child and it got him captured. His actions got fellow soldiers killed.
Disregard the fact the president bypassed the Constitution, that’s a daily occurrence.
1. Why did the soldiers of the 501st at the FOB have to sign and NDA regarding this incident?
2. Why did the Haqqani network agree to turn him over for five members of the Taliban?
3. Why are people questioning if those turned over are Terrorist? (Two are wanted by the UN for war crimes.)
4. We didn’t do a “prisoner exchange.” That’s for nation states. Bergdahl was captured in Afghanistan, being held in Pakistan be a terrorist group that agreed to release him for 5 members of a different terrorist group.
5. Now were saying that “Israel does this” as a justification? That’s probably a first for a lot of people who posted here.
“If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” Thomas Jefferson
Steve – thanks for the extended explanation.
“Spinelli” and “Schulte” I wish you well in this one.
I learned one thing from this blog, it does no good to tell the left the truth for most are so set in their beliefs and so loyal to their mistakes they put in office that rather than be proven wrong, they will still deny the truth.
http://www.politico.com/story/2014/06/bowe-bergdahl-release-sarah-palin-criticize-barack-obama-afghanistan-107319.html?hp=l3 Terrorism expert Sarah Palin says Obama “blew it” and so does Bill Kristol.
SWM – you do know that Presidential and Vice Presidential candidate are given regular Intelligence briefings. You know, those briefings that Obama avoids? And after that, it is not hard to keep up to date.
To borrow a bit from the Duke of Wellington..
“.. all of Afghanistan is not worth the life of one
Private First Class”
Paul, Don’t know. I was out of town for the weekend and did not turn on my computer. 🙂
“To his credit, Cruz said the policy of not engaging terrorists was decades old, not centuries. But there are more recent examples where, as Reiss wrote, “American presidents have negotiated with terrorists and rogue regimes to secure the release of hostages, to arrange temporary cease fires and to explore whether a more permanent truce might be possible.”
Here’s a few, according to Reiss’ book:
After the North Koreans captured the U.S.S. Pueblo in 1968, President Lyndon Johnson apologized for spying as part of negotiations to secure the release of 83 American prisoners.
In 1970, President Richard Nixon pressured Israel, Switzerland, West Germany and Britain to release Palestinian prisoners after two airlines were hijacked by the Popular Front for the Liberation of Palestine.
During the Iran hostage crisis of 1979 to 1981, President Jimmy Carter agreed to unfreeze $8 billion in frozen Iranian assets after more than a year of negotiations with the Iranian revolutionaries.
In perhaps the most famous swap, after seven Americans were captured in Beirut, Lebanon, President Ronald Reagan agreed to send missiles to Iran in what became known as the Iran-Contra scandal.”
http://www.politifact.com/truth-o-meter/statements/2014/jun/01/ted-cruz/ted-cruz-us-policy-has-changed-now-we-make-deals-t/
President Bill Clinton’s administration sat down with Hamas in attempts to negotiate peace with Israel. His administration also worked directly with the Taliban nearly two decades ago on several occasions to see if the group would hand over Osama bin Laden and other al-Qaida leaders.
Reiss also noted that President George W. Bush engaged in negotiations with Iran and North Korea even after decreeing them part of the “Axis of Evil.”
James Jeffrey, a former ambassador to Iraq under Obama and deputy national security adviser for George W. Bush, agreed that “there have been many cases of negotiations with terrorists or rogue regimes for the return of Americans.”
But he added: “releasing terrorists in exchange for captives, however, is rare.”
One recent example came in 2010, when the United States released Shia cleric Qais al-Khazali to the militia group Asaib al-Haq in exchange for Peter Moore, a private British contractor, and the bodies of Moore’s security officers. Asaib al-Haq is a militia group allegedly funded by Iran and headed by al-Khazali and staged and executed several attacks in Iraq that resulted in the deaths of U.S. soldiers.
Our ruling
Cruz said Obama changed “decades” of policy of not negotiating with terrorists when he brokered the deal that brought Bergdahl home. Even though presidents and officials often say “we do not negotiate with terrorists,” it has not proven to be a hard-and-fast rule. Obama’s actions so far do not signal a change in policy, but rather the latest in a long line of exceptions presidents have made throughout recent history.
We rate Cruz’s statement Mostly False.
SWM – didn’t we have a thing the other day on Politifact not being trustworthy?
pete, NO ONE contends these 5 Taliban are not top echelon. NO ONE.
There’s a superb piece written by a US soldier on the Daily Beast Website today. It is the headline story. For those unfamiliar, The Daily Beast is a left news source. Soldiers died looking for this deserter.
Believer
Who said they were leaders? According to Paul 2 1/2 of them weren’t even terrorists.
I am so infuriated by this exchange. This administration has dung for brains. We trade 5 leaders per se for one lowly soldier. Apparently the leaders of this administration has no experience in making deals! They would give away the farm for a wagon with no wheels. We send back leaders to our enemy and we get a singular soldier, a deserter? Great exchange! hurray, hurray……What happened to one for one, at least their expertise should be fairly equal……………. So we got one of ours back which we all want but Obama gave them a group with the experience and hate for us far greater than those who have not been incarcerated at Git-mo and whose experience is far greater and more dangerous to this country than our lying president even gave thought to. Wasn’t there a plane that went missing lately that no one has a clue where it is? There may be more prisoners to be exchanged. Give that one a thought.
This was purely a political move and certainly not one to benefit this country. Yes we want the boy home and I am happy for his family but beware this dung for brains leader we have will give away our country for a legacy…………..or destroy it.
Also, why hasn’t this wonderful leader of ours brought back one of our own who sits in jail in Mexico, whose mistake was making a wrong turn on the freeway. Mexico, a neighboring country and supposedly an ally. What is Barry going to do here. Give amnesty to thousands for one man?……….Oh he doesn’t have to get anyone back, he will give amnesty to thousands for voters. He wouldn’t try to save four of our finest but gave our enemies their leaders back for a deserter? Great legacy!
Supposedly the Gitmo prisoners will be in Qatar for a year, but we all know that is a dodge. I would be surprised if they stay 6 months. We know that at least 50% of the people we release from Gitmo we end up either killing or capturing again in firefights. This will not end well.
We need to find out if they gave him his sidearm back when they released him. And we need to have a discussion about the enlistment in a volunteer army of young people who never went to school but were home schooled by hippies. And someone tell us why we were in that Pirate Territory to begin with. I forgot.
And, as to the substance, I think it’s an extremely unwise decision, besides being an unlawful one, because it encourages future hostage taking and rewards the bad guys.
However, this is somewhat mitigated, if it helps us get out of Afghanistan. As much as I dislike a lot of what Obama is doing, I’m still convinced he’s much better than any of the Republican alternatives would have been as far as getting us out of the quagmires that Bush got us into.
Obama to Congressional Republicans: “I double dog dare you to impeach me.”
leej, If this President had not ignored so many laws I would give him the benefit of the doubt. Only blindly loyal give him a pass now.
There’s a difference between talks about it for years and having an opportunity presented.
((*_*)) Nick.
leej, There needs to be a courts martial where the facts are established. I agree totally on that.
But, we all knew that from her last tour on the Sunday shows.
Supposed t e innocent til proven guilty in the US but I guess for this guy it doesn’t matter.
This is not new, Israel has been doing this for ages.
leejcaroll – not sure what Israel has to do with all this. We have a law that clearly has been broken by the President of the United States. Israel can deal how they want.
Rice said “The Defense Dept. notified the Justice Dept.” She claimed this deal just came together quickly! We know it went back to 2012! Rice is a liar.