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.
Paul:
“mespo – so those students at colleges and universities that have shouted down conservative speakers were all right-wingers?”
******************
No one should shout down anybody. That doesn’t mean you have to invite them to speak.
Eric:
good points. The effects wont be in the best interests of the US.
Nick
“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.”
Amazing they let her in back in front of a camera. Why not just go “all in” and team her with Biden to do joint interviews?
Translation of Rice’s lecture: We are busy crafting our message to demonstrate that poor Bowe is mentally ill.
The new message will be:
“How dare you talk about this solider who served with “honor and distinction” all while suffering from a serious mental illness?
We here at WH are committed to honoring our heroes and will ensure Bowe gets the best care possible from the V, er, the best care possible.”
14 Specific Allegations of NYPD Brutality During Occupy Wall Street
Conor Friedersdorf
Jul 25 2012
http://www.theatlantic.com/politics/archive/2012/07/14-specific-allegations-of-nypd-brutality-during-occupy-wall-street/260295/
Excerpt:
An investigation undertaken by law clinics at NYU, Fordham, Harvard, and Stanford has concluded, after eight months of study, that the NYPD abused Occupy Wall Street protesters and violated their rights on numerous occasions during the 2011 protests that radiated out from Zuccotti Park. Their report, Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street, was released today. It focuses on transgressions against international law.
What I found most arresting were its specific descriptions of alleged police misconduct. Scores of examples were offered. I’ve highlighted a selection of the ones that struck me as most credible, whether due to video footage of the incident or eyewitness testimony from a credentialed journalist, a designated legal observer, or a member of the legal team that put together the report (the report, linked above features links).
All of the following vignettes are quoted verbatim from its pages:
A café employee at work near Union Square heard a passing Occupy march, went outside, and decided to begin filming after seeing police using what he felt was excessive force on protesters. Video evidence shows a white-shirted police officer pushing the café employee, camera in hand. It appears that the employee then began speaking to the officer while holding both hands in the air as the officer approached him. In an interview, the employee stated that he asked the officer why he was pushing and told the officer, “I’m just taking pictures.” Video then shows the officer grabbing the employee by the wrist, and flipping him hard to the ground face-first, in what was described as a “judo-flip.” The employee stated that he was subsequently charged with “blocking traffic” and “obstructing justice.”
Video shows that an officer drove a scooter at a crowd of people, including journalists and legal observers. The video then shows a legal observer lying on the ground screaming, his foot under the scooter. A second video shows the observer on the ground with his foot under the scooter. A third video shows that the observer kicked the scooter off or away from his leg, at which point officers dragged the observer several feet and began to cuff him. While he was being cuffed, an officer pushed the observer’s face into the pavement by pressing his baton across the back of the observer’s neck.
A member of the Research Team observed an officer push and then throw
a male protester into the air for no apparent reason as he walked, with many other protesters, near parked police scooters. The protester fell hard to the ground and was not arrested.
A journalist stated that when he asked a non-uniformed officer for his name at a march, the officer pushed the journalist against a wall and held him there, threatening him that if he kept asking questions, he would get “his fucking ass beat.” The journalist recorded interviews with two bystanders immediately after the incident. One bystander stated that he witnessed the officer using abusive language toward the journalist. He then told the journalist that the officer “put his chest in your face and pushed you around.” The other bystander told the journalist that the officer “[got] up in your face and [shouted] at you. He pressed you against the wall of the supermarket.”
A journalist reported that an officer shoved a legal observer, also a retired judge, against a wall after she demanded that the officer stop beating a protester. The legal observer described the incident in an interview: “the officer said, ‘Lady, do you want to get arrested?’ And I said, ‘Do you see my hat? I’m here as a legal observer.’ He said, ‘Do you want to get arrested?’ And he pushed me up against the wall.”
Video shows that an officer approached a woman from behind and grabbed her by the strap of her backpack and her scarf for no apparent reason. The officer began to pull the woman towards him, and other protesters began pulling the woman away from him. The officer pulled at the woman by the strap of her backpack for approximately fifteen seconds, and appeared to possibly be choking her via the strap or her scarf. The protesters eventually pulled the woman away from the officer, and police appeared not to take any further action.
Video shows that an officer punched a protester three times in the head and shoulder. At the time, the protester was in a soft lock, in which he linked arms with other protesters and sat in the street, and police were attempting to pull him away. The video shows that the officer tried to separate the protester several times by pulling him, but did not attempt any other methods before punching the protester.
Video appears to show that police pushed a woman onto the hood of a car. The woman then fell to the ground and did not get up for several seconds. When she got up, the woman was holding a microphone; the video’s caption states that the woman is a “news reporter.” A news report provides a video of the same incident from another angle and identifies the individual who was pushed as a reporter for the Daily Caller.
Lawyers representing a legal observer stated that eight officers “charged toward the legal observer, forcing his upper body onto the hood of a parked car, where they roughly grabbed his arms and forced them high behind his back …” Before the incident, the legal observer had been recording the names of arrestees as they were led to a police van. At the time when he was arrested, the legal observer was speaking on his cell phone. The district attorney declined to prosecute the legal observer (who had been charged with disorderly conduct). Video confirms that the legal observer was speaking on the phone when an officer approached him. The legal observer walked toward the sidewalk, but the officer grabbed him and pushed him onto the hood of a parked car. Three other officers then came over and helped the officer cuff the legal observer. At one point, eight officers surrounded the legal observer.
A journalist reported that an officer grabbed a protester “by the bottom of her throat and shoved her head against the hood of a car,” and that another officer then “forcefully pressed her head against the car.”
A journalist reported that officers threw down and beat a photographer with batons, even after he had shown his press pass. The journalist reported that the photographer “yelled several times, ‘I’m PRESS! PRESS!’ yet was slammed on the head [with a baton] twice after he’d been thrown to the ground when the police shoved back the protesters.” In the same report, the photographer stated: “there was another push from the police — they saw me fall …. Just didn’t care …. Then came the batons. I couldn’t see if the people that were on top of me previously got hit at all but I certainly did, twice to the back and once on the head.”
A member of the Research Team witnessed a particularly violent arrest. A protester was observed lying on the ground, with a number of officers standing near. The protester stated that his shoulder had just been dislocated; the officers stated that they had called an ambulance, and were not going to handcuff the protester because of his injury. However, moments later, a second group of officers rushed in and aggressively handcuffed the protester. He screamed out in pain repeatedly and told the officers about his injury, asking them to be gentle. The officers responded by stating the he was “a liar,” and they repeatedly intentionally pushed and pulled his injured shoulder. When EMTs did subsequently arrive, they inspected his shoulder, immediately removed the handcuffs, and put him in an ambulance for treatment. The individual’s lawyer later stated that the protester in fact had suffered a broken clavicle, an extremely painful and serious injury.
Partisan tunnel vision and Bergdahl minutia is interesting, but they’re not the main story here.
By far the most consequential piece of Obama’s extra-procedural action is his virtually unconditional release and restoration into the world community of the five most dangerous and senior Taliban commanders we had in custody.
Talk about that. What first, second, and third order effects should we now expect to ripple out from Obama’s action?
Oh please. If Bob Bergdahl hasn’t been attacked here by the usual suspects it’s been an oversight.
Byron, Thanks. You taught me something I did not know, Axis Sally indeed!
Exactly Feynman, that’s why I question the sincerity.
Paul S
Tell that to Bush, Cheney, Yoo and Bybee.
Elaine – so, the actions of the police make the actions of OWS okay? Did the police kill anyone? Did they rape anyone? Did they set the tents on fire? Did they expose themselves to children?
One of the aspects that has disturbed me out there are the attacks on Bergdahl’s old man. Thankfully, to date, that has not occurred here. There is a very interesting piece by Michael Ames on the Daily Beast website titled Berdahl’s Dad. It is their headline article. The guy grew up Republican and spoke @ a Republican fundraiser in 2010. The article discusses the moving speech Bergdahl gave to a hall full of Republicans. And, how the story Bob Bergdahl told became a plot in the series, Homeland. As I’ve said, the Daily Beast has done some of the best reporting on this. The piece humanizes Bob Bergdahl. Most of us don’t need him to be humanized. Any good father who had a son held hostage would do anything they could to free their son.
Yes indeed it is Paul, but I question the sincerity of some folks expressed sentiments. Which I guess I’m allowed to as long as its civil.
Annie.
At least once a month we have a regular rodeo here calling for the heads of every sub-human muslim dog.
Nick:
Susan Rice is more like Axis Sally.
http://en.wikipedia.org/wiki/Mildred_Gillars
She is a propagandist for our petite dictator.
Prof. Turley said it best when he said Obama is the president Nixon wanted to be, although I think that is too kind to Obama and rather harsh on Nixon.
Annie – regardless of how any one feels, a war crime is a war crime.
We can all feel safer now.
http://www.dailymail.co.uk/sciencetech/article-2649778/Thatll-definitely-help-U-S-Secret-Service-buys-special-software-detect-SARCASM-Twitter.html?ITO=1490&ns_mchannel=rss&ns_campaign=1490
As if some here really care about what happened to Shiite Muslims. AS IF. I have my my serious doubts about that.
Steve, No he isn’t one of the war criminals who killed Shiite men women and children, hanging them en masse in a soccer stadium.
No kidding?! Who would’ve guessed that he and thousands of other Afghans want to kill Americans?! Perhaps they will let him go to the head of the line in honor of all the years he spent at GTMO.
Nick Spinelli
“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.”
NO! Really? Who would have thought this possible?
Is he one of the two that is wanted by the UN for war crimes?
Susan “Baghdad Bob” Rice just lectured us on CNN. The interview should be on the website.