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.
In the surreal department, the WH is still sending out Susan “Baghdad Bob” Rice. She is lecturing us that we should not judge Bergdahl too quickly. This is the woman who judged the Benghazi raid as being caused by a stupid video and judged that Bergdahl served “w/ honor and distinction.” This woman is incompetent and so is the WH.
mespo:
“Ok Steve I get it. The President, despite his daily CIA briefing, knows less foreign policy than his conservative critics who get their briefing from FoxNews. Promotions mean nothing. Hagel and everybody else in the Army brass who disagrees with right-wingers assertions are liars, and every critic of Bergdahl’s is righteous, calm and responsible as they call for his head. Oh, by the way, they still are the only group of “victims” in history who wanted their tormentor to be protected from facing justice. Quite a world you live in, Steve.”
At this point, to think the president knows how to spell foreign policy may be a stretch.
Hagel. Needs no retort.
How exactly did his fellow soldiers want Bergdahl “protected from facing justice?”
Well gee. It wouldn’t be nearly as entertaining, if the man said he just wanted to go home and study Schopenhauer.
mespo – I tried to insert the chart here, but I don’t know how to insert pdfs. So I am going to list the results for OWS.
Murders – 3
Suicides – 1
Drug Overdoes (deaths) – 2
Other deaths – 6
Terrorism arrests – 7
Rapes – 12+
Indecent exposure to children – 6+
Public masturbation – 4+
Public defecation/Urination – 15+
Arson – 2+
Thefts – 500+
Arrests – 6800+
Police officer injuries – 15+
Property damage (millions $) – 12+
Lost business (millions $) -13+
Cost to taxpayers (millions $) – 30+
Precisely Feynman. @1:09.
12:33pm and 12:45pm.
This will come as no surprise to anyone who is not a cultist. One of the released terrorists, Noorullah Noori, was just interviewed by NBC. He vowed to return to Afghanistan and continue the killing of US soldiers as he did before his capture.
What’s wrong with looking stuff up? Sorta sounds like a parent that would limit a child’s questions.
Surprisingly, some don’t bother looking stuff up – like if Obama and Putin met at Normandy.
I don’t wonder. I know why. Some like to lecture. Some lectures are complete falsehoods. When that becomes apparent, it is important to move on quickly while pointing at the next shiny object.
Bob Esq. Being one of the few informed people here, I’m sure you know the NDAA passed w/ huge bipartisan support. Some here don’t even know what it is w/o looking it up.
Annie – so if I commented to you as angryman has to me, you would find it interesting?
I’m still looking for the provision that states: the President may in his discretion completely ignore NDAA sec. 1031
Dredd…..heheh.
Paul C. Schulte
Dredd – I do not watch any national news programs on TV
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Nick cares.
As far as I know Paul, he was always Angryman, but really, who cares? I’m just glad he comments, a very interesting commenter.
To Nick.
Until one is understood.
Then, on to low grade 4.
At which time he can understand jokes.
Dredd – so you are in charge of Turley’s blog? You seem to be setting the rules. Annie, what do you say about this?
Paul C. Schulte
mespo – so those students at colleges and universities that have shouted down conservative speakers were all right-wingers?
*****
Paul,
Do you defend those who silence people with views different from theirs? That’s what you seem to be implying on this thread. You claimed that group from Texas was within their rights to stop people in Idaho from assembling peacefully as they had planned.
mespo – the group from Texas can protest lawfully. If that stops the parade, then so be it. Shouting down an invited speaker is not protesting peacefully.
Annie
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?
==================================
Like all newbies, PC is still on perturbation for another 500 comments.
Once “it is reported” that he has increased swill by a long shot, he will become a low grade 3.
Then, he will be allowed to tell jokes.
NDAA
Subtitle D: Counterterrorism – (Sec. 1031) Authorizes the Secretary to transfer or release any individual detained at U.S. Naval Station Guantanamo Bay, Cuba (Guantanamo) to such individual’s country of origin or another country if:
(1) the Secretary determines that the individual is no longer a threat to national security,
(2) such transfer or release is to effectuate an order by an appropriate U.S. court or tribunal,
or
(3) the individual has been tried in such a court or tribunal and has been acquitted or has completed the sentence under a conviction.
Requires, as further determinations prior to such transfer, that: (1) actions have been planned or taken that will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or hostile activity that threatens the United States, and (2) the transfer is in the U.S. national security interest.
Outlines factors to be considered in making such determinations, including any confirmed cases of recidivism of individuals previously transferred to such country.
Requires the Secretary, at least 30 days prior to such a transfer, to notify the defense, appropriations, and intelligence committees. Defines a detained individual as one located at Guantanamo as of October 1, 2009, who is not a U.S. citizen and is in the custody or control of DOD. Repeals superseded authorities.
And, some folks wonder why I ignore them.
Annie
Dredd, I always think of Glenn as “Blood shooting out of my eyes” Beck.
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Yep.
He getteth crakethed upeth betimes.