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 is a LIE to say McCain supported this deal. He, being a former POW, wanted our guy home. He has said that all the way through and today says he’s glad Bergdahl is free. HE NEVER SUPPORTED THIS DEAL. He supported A deal. He vehemently REJECTED this deal 2 years ago. It is pretty low to go after a POW who suffered unbelievable pain for 5 years, on this. We regular folk can smell the flop sweat.
Nick
Nothing to say about Putin snub?
Paul, what do you mean the picture is new? It’s the same picture he used when he first appeared here on Turley. Maybe he commented sometime back before I started commenting, but then you weren’t here then either, or were you? You started commenting just a couple of months ago, no?
Annie – so, who was angryman when he first start here? Or was he always angryman?
Annie
Just curious, Paul, why did you think AngryMANspeaks was a woman? That’s pretty funny, his facial hair kind of speaks for itself, no? 😕
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Perhaps the PCS dood is having a mid-life cruxis?
The gender-faction fallacy could be a factor too.
McCain screamed @ John Kerry in 2012 when they were briefed on this exact deal that it was horrible. Kerry, auditioning to be errand boy Sec. of State was reportedly the ONLY Senator briefed who agreed w/ it. You can go after McCain on a lotta stuff. But, he was forcefully against swapping the “baddest of the bad”[his words in 2012] and the KEY words in his interview w/ Cooper was “I would have to know the details.” Tapper had McCain on yesterday, he grilled him, and it is clear to me and any reasonable person the “hypocrite” tag on this is just plain wrong. I voted for Obama, not McCain.
Paul C. Schulte
mespo – … it has been reported …
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Don’t forget “allegedly, some say, a source informs us, we are saying it anyway” and other things from the “hard science” of faux snooze.
annie – the picture is new and I did ask about the angryMANspeaks, but got no response.
Dredd, I always think of Glenn as “Blood shooting out of my eyes” Beck.
Nick
Re Putin. You’re wrong. Again.
‘United States, Russia and Ukraine took small steps on Friday to ease tensions as President Obama briefly met with Russian President Vladimir Putin for 15 minutes on the sidelines of D-Day commemorations here.’
Just curious, Paul, why did you think AngryMANspeaks was a woman? That’s pretty funny, his facial hair kind of speaks for itself, no? 😕
Nick Spinelli
As anyone who has read my opinion of Putin you know I routinely call him the most dangerous man in the world.
…
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It is a toss up between him and the “Stay Thirsty My Friends” dood, “the most ____________ man in the world.”
Obama did act as a gentleman and help the Queen down the stairs, Putin stood there w/ a stick up his ass.
mespo727272
Paul:
And you know that how? FoxNews?
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Probably faux snooze.
Dredd – I do not watch any national news programs on TV
swathmore:
McCain,a hypocrite? Guess it goes with the territory.
Before I am pounced on, it does take 2 to snub. Putin could have reached out to Obama. He did not and that is consistent w/ my take on him. I want my leader to be bigger than Putin. That’s not hard, height or otherwise.
Nick Spinelli
Steve, I will say for the 3rd time in this thread, neither Bergdahl, or the 5 terrorists released were listed as POW’s until last Saturday!
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Listing them means nothing when done by partisans.
A competent tribunal exercising international jurisdiction will determine their status.
P.S. What Glen “Shiniy Object” Beck says is also irrelevant.
Paul:
And you know that how? FoxNews?
Paul:
“If they can peacefully stop the parade, they have that right. They have the right to protest. In this case, their mere letter to announce their intention of protesting seems to have stopped the parade.”
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That’s called a hecklers veto and it’s only sanctioned in the right-wing salons where you dwell. Everyone has rights not just the viewers of Fox News. Why doesn’t Pringle gather his mob up and do their own parade of fools. If you don’t understand that stopping someone from exercising their rights is a crime, you really need a remedial class in adulthood.
mespo – so those students at colleges and universities that have shouted down conservative speakers were all right-wingers?
http://www.nytimes.com/2014/06/06/opinion/demonizing-sergeant-bergdahl.html?smid=tw-share “Four months ago, Senator John McCain said he would support the exchange of five hard-core Taliban leaders for the release of Sgt. Bowe Bergdahl. “I would support,” he told CNN. “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.”
But the instant the Obama administration actually made that trade, Mr. McCain, as he has so often in the past, switched positions for maximum political advantage. “I would not have made this deal,” he said a few days ago. Suddenly the prisoner exchange is “troubling” and “poses a great threat” to service members. Hearings must be held, he said, and sharp questions asked.
This hypocrisy now pervades the Republican Party and the conservative movement, and has even infected several fearful Democrats. When they could use Sergeant Bergdahl’s captivity as a cudgel against the administration, they eagerly did so, loudly and in great numbers. And the moment they could use his release to make President Obama look weak on terrorism or simply incompetent, they reversed direction without a moment’s hesitation to jump aboard the new bandwagon.”
Elaine M:
“You’re saying that it’s okay for a group from Texas to stop a group from Idaho from peacefully assembling? ”
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Who says all fascists wear brown shirts and live in Germany of the 30s?