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.
randyjet
BTW, that UN statement was over a year ago when they first started to be force fed. OVER A YEAR AGO… and continuing.
How many hours, days, months and years would YOU tolerate being force fed by your captors knowing that you were supposed to be released years ago from their grasp?
HOW is that not torture?
Bob, Bob, come one, stop making a logical, legal argument. It’s like you’re speaking Greek to a cultist. Just bow toward DC and praise our emperor. He is currently unclothed, but the cultist see him nattily attired.
Bob, Esq.
The remaining 78 that were cleared for release…
… Is it that Obama thinks they aren’t releasable?
And the hardened five, were?
Bob, Esq.
There are Men and there are Laws…
… Some think themselves above the other.
Someone mentioned earlier that since the WH is still sending Susan Rice out there, that maybe Joe Biden is next. If they sent out those 2 idiots that is a sign of the apocalypse!
So there was a showing that
the 5 Taliban members were no longer a threat to national security,
that: sending them to Qatar for a year vacation will substantially mitigate the risk of such individuals engaging or reengaging in any terrorist or hostile activity that threatens the United States, (Despite the fact that they can resume their activities online immediately)
and that the transfer was in the U.S. national security interest.
And the administration has confirmed that the rate of recidivism in this case is negligible?
And the defense, appropriations and intelligence committees were given 30 days notice of said transfer; to make sure the aforesaid was true and accurate?
Not 30 days?
How about 48 hours?
No?
I don’t understand. Why on earth not?
randyjet
It is clear that the President has the LEGAL power to release and control POWs under the Constitution since he is the CIC.
= = =
The fact that he continues to define the detainees as something other than POW’s is Bush-lite! Why he does is beyond me. THAT he does, is inexcusable. And that is where it ventures into the bizarre.
U.N. Official Says Gitmo Force-Feeding Violates International Law
http://thinkprogress.org/security/2013/05/01/1946641/un-gitmo-torture/
ON OBAMA’S WATCH!
He said he stopped WATERBOARDING!!!
There’s multiple forms of torture out there…
Bob Esq, You eviscerate the cultists w/ aplomb! Bravo.
I can’t seem to find the provision that states: the President may in his discretion completely ignore NDAA sec. 1031
A little help?
John:
The natural born citizen road has been extensively traveled on this site. There are no more landmarks worth seeing. However, if you have an intense desire to revisit, you can start here: http://jonathanturley.org/2009/07/19/retired-major-general-joins-litigation-over-obamas-birth-status/
Just don’t expect anyone else to want to go along for the ride.
Obama: “I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation …. No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.”
Hypocrisy is the tribute vice pays to virtue. — Francois de La Rochefoucauld
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.
Paul C. Schulte,
The focus on Bergdahl is the Obama administration’s spin away from the by far more consequential, virtually unconditional release into the world community of the 5 most dangerous, senior Taliban commanders in our custody.
Elaine M.
That’s poppa bear you’re talking about…
… Momma grizzly won’t be happy. You bet-cha!
Paul:
mespo – isn’t college the place where you are supposed to hear things you don’t like?”
*************************
Yes, indeed but you don’t have to hear everything:
http://www.youtube.com/watch?v=M6xyV68KN5A
Kudos to Gene H.
mespo – you are correct, since I never listen to Gene H.
Feynman and Appleton,
Further an excerpt:
David Ramsay’s 1789 Dissertation on Citizenship
David Ramsay was an historian, Founding Father, and member of the Continental Congress [REMEMBER: This is where they “pounced” on Vattel], whose Dissertation On The Manner Of Acquiring The Character And Privileges Of A Citizen Of The United States was published in 1789, just after ratification of our Constitution and the Year the new Government began.
It is an interesting dissertation and only 8 pages long. At the bottom of his page 6, Ramsay states:
“The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776.” [modernized spelling & emphasis are mine]
Do you see? Ramsay’s Dissertation sets forth the understanding of the Time, formally stated by Vattel and incorporated by our Framers, that a “natural born Citizen” is one who is born of citizens. And we had no “citizens” until July 4, 1776.
Feynman and Appleton,
Yes he is absolutely ineligible. The first concern for eligibility was that a candidate not have “foreign allegiances.” Foreign allegiances cannot be precluded and excluded when the father is a foreign citizen. Preposterous.
Vattel’s Law of Nations. Ben Franklin said the Founders “pounced” on it seeking direction as the wrote the Constitution. Vattel follows the citizenship requirement of two parents with a citizen-father requirement.**
Ask yourself what the Founders understood in that era. I think reasonable people can agree that, in that era, men had standing and women had considerably less, to put it politely and diplomatically. If it were, hypothetically, to have been the case that only one parent were required, it would have been the father.
“From 1776 to 1783, the more the United States progressed, the greater became Vattel’s influence. In 1780 his Law of Nations was a classic, a text book in the universities.”
During 1775, Charles Dumas, an ardent republican [as opposed to a monarchist] living in Europe sent three copies of Vattel’s Law of Nations to Benjamin Franklin. Here is a portion of Franklin’s letter of Dec. 9, 1775 thanking Dumas for the books:
“… I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author…” (2nd para) [boldface added]
Vattel’s Law of Nations was thereafter “pounced upon by studious members of Congress, groping their way without the light of precedents.”
** § 212: Natural-born citizens are those born in the country of parents who are citizens – it is necessary that they be born of a father who is a citizen. If a person is born there of a foreigner, it will be only the place of his birth, and not his country.
Bill O’Reilly has just sent out a bulletin.
Warning: Leonard Cohen is obviously a terrorist. All those Alleluias in his great hit. Everyone knows that Alleluia – means praise god. And if you put the Alle in front of the luia – it’s their Allah god.
Also. Handel and the Alleluia chorus. Everybody get cracking and tearing that out of their hymnals.
Boy! I don’t know how we are going to stay ahead of all the poisonous plots to enact Sharia Law. Jeez. Who knew it went all the way back to Handel and King Henry VIII.
Paul,
I HAD checked out OWS Exposed. Here’s what I found posted on the website’s ABOUT page:
About
The mainstream media’s obsession with the leftist movement in America is preventing them from objectively reporting on the facts surrounding the ‘occupy’ movement. Most Americans who rely solely upon the mainstream media for their news have no idea of what is actually taking place and why.
Our goal is to educate the public on the real facts behind the OWS movement by reporting stories most people won’t likely see or hear from the mainstream media. It is our hope that this information will help people form a more honest perspective on the ‘occupiers,’ many who are seeking to destroy the American way of life.
*****
I didn’t find a link to any investigation report. That’s why I asked you for more information about where you got those OWS crime numbers.
Elaine it appears Paul wants you to do his homework for him, he should aspire to be more like Spinelli who graciously devotes all his time to do our homework for us. 🙂