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.
This story reminds me of situations where hikers in CA did drugs on the trail, got disoriented, and lost. Millions of dollars were spent trying to find them and searchers risked their lives looking in ravines.
Bergdhal appears to have deserted the Army because he decided he hated America. But his decision did not go well for him, as he found the Taliban to be less pleasant than he perhaps expected. 6 soldiers died looking for him. I imagine their families feel great bitterness at Berdhal’s selfish actions. The President went around the law (again) and traded a 5 member Al Qaeda Dream Team for him. I imagine the families of people these men will kill in the future will also not look with kindness on Bergdhal. As will the next hostages taken, as the trade has been heralded as a great victory for the Taliban and Al Qaeda. It will encourage more hostage taking.
Our soldiers in the military trust each other with their lives. Bergdhal betrayed that trust and cost them 6 of their own through his own thoughtless selfishness. He has put others in harms way with the release of top Al Qaeda members and with encouraging kidnappers.
I greatly sympathize with his family, although I have to wonder why his father would praise Allah when his son looks completely wrecked from his time there. Even though he caused this entire mess, I am glad that we have an American back, but I object to how it was done. The Taliban is not a sovereign nation. He was not a POW captured against his will. He walked off the base. It is inconceivable why the State Department left the Taliban off the list of Foreign Terrorist Organizations in 2010. I guess we can throw that on the pile with Boko Haram.
Meanwhile, we’ve left our honored Marine to rot in a Mexican jail for getting into the wrong lane by the border, where you have to cross before you can turn around. Literally. He had guns in his truck which were legal in the US, but illegal to take across the border. You’d think the State Department could work this out but it’s been over 2 months.
Karen, I retrieved your comment.
Karen’s comment is above at 3:53
Oh yeah. It was all those lawsuits that drove the half-term governor out of office.
swarthmoremom
I’m not rock solid on the funding issue. It’s very complicated and I shouldn’t have discounted the funding.
I picked this up over at The Dish…
“This isn’t a familiar Congressional impasse where Democrats want to spend a certain amount of money on something while Republicans want to spend less money. Those sorts of fights are destructive, too. In a way they’ve defined the Obama presidency. But they’re also resolvable. Veterans health care is different—the story here is 100 percent ideological, and zero percent fiscal.
It’s not that big government foes are after spending less money on the VA, per se, or want to isolate efficiencies within its existing structure and ply the savings into building out capacity within the department. They instead want to spend more money on veterans by transitioning them into an entirely different, private-sector oriented system of care. This includes House Speaker John Boehner.”
_______________________________________________
God save us if the Republicans move to privatize the VA. But Bernie may be stretching too far in his wish greatly expand caregivers aides.
Also, I haven’t yet read the article (and I will), but is 60 years too long a shelf-life for a building?
A private system cannot possibly do worse then the government run VA
Of course a private system can do worse than a government run system. The Private system is dedicated to profits while the government system is dedicated to helping people. The problem isn’t less government you…”Nice Man”; the problem is poorly run government. If you conservatives would dedicate your vast “Capitalistic Business Skills” to helping the government run efficiently rather trying to tear it down every time it tries to do good; perhaps we would all see what the possibilities are for our nation.
This entire argument comes down to this. It is clear that we need both capitalistic success and socially responsible assistance for those who can’ make it alone. Screw Personal Responsibility. Some folks can’t be personally responsible. Don’t you think they would like to be? Do you really believe that a large percentage of Americans choose to be unproductive? You do; I know. I’ve been told before. I just find it hard to accept that so large as faction of people can have such a callous attitude toward their neighbors. Oh wait. You don’t let people like these in your neighborhood; do you?
Ok; My neighbors then.
On Mon, Jun 2, 2014 at 4:23 PM, JONATHAN TURLEY wrote:
> Paul C. Schulte commented: “A private system cannot possibly do worse > then the government run VA” >
Steve Kellam, I was replying to another commenter’s question directed to me. I have nothing further to say about Palin. ‘ Nuff said.
Annie – hit-and-run, eh?
No Paul, it’s a war on dummies.
@Annie; The topic of this discussion is the exchange of 5 top Al-Qaeda linked Taliban for a US Army Sgt., not about Sarah Palin.
SWM, dream ticket….for Democrats that is,lol.
Annie, I hope they pick her as vp again. How about a Cruz Palin ticket?
Paul C, Strong republican women that don’t finish their terms… ..
SWM – she was being bombarded by Democratic lawsuits as governor. It was in the best interest of the State of Alaska that she step down and allow the state to do its regular business, instead of defending her against nonsense suits filed by Democrats and their War on Women.
1. “As Putin rears his head and comes into the air space of the United States of America, where– where do they go? It’s Alaska. It’s just right over the border.” –Sarah Palin, explaining why Alaska’s proximity to Russia gives her foreign policy experience, interview with CBS’s Katie Couric, Sept. 24, 2008 (Watch video clip)
2. “Mr. President, the only thing that stops a bad guy with a nuke is a good guy with a nuke.” –Sarah Palin, on how President Obama should deal with Russian President Vladimir Putin, CPAC speech, March 8, 2014
3. “The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worthy of health care. Such a system is downright evil.” –-Sarah Palin, in a message posted on Facebook about Obama’s health care plan, Aug. 7, 2009
4. “All of ’em, any of ’em that have been in front of me over all these years.” –Sarah Palin, unable to name a single newspaper or magazine she reads, interview with Katie Couric, CBS News, Oct. 1, 2008 (Watch video clip)
5. “Well, let’s see. There’s ― of course in the great history of America there have been rulings that there’s never going to be absolute consensus by every American, and there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So, you know, going through the history of America, there would be others but ―” –Sarah Palin, unable to name a Supreme Court decision she disagreed with other than Roe vs. Wade, interview with Katie Couric, CBS News, Oct. 1, 2008 (Watch video clip)
6. “‘Refudiate,’ ‘misunderestimate,’ ‘wee-wee’d up.’ English is a living language. Shakespeare liked to coin new words too. Got to celebrate it!'” –a Tweet sent by Sarah Palin in response to being ridiculed for inventing the word “refudiate,” proudly mistaking her illiteracy for literary genius, July 18, 2010
7. “He who warned, uh, the British that they weren’t gonna be takin’ away our arms, uh, by ringing those bells, and um, makin’ sure as he’s riding his horse through town to send those warning shots and bells that we were going to be sure and we were going to be free, and we were going to be armed.” –Sarah Palin, botching the history of Paul Revere’s midnight ride, June 3, 2011
8. “But obviously, we’ve got to stand with our North Korean allies.” –Sarah Palin, after being asked how she would handle the current hostilities between the two Koreas, interview on Glenn Beck’s radio show, Nov. 24, 2010
9. “We used to hustle over the border for health care we received in Canada. And I think now, isn’t that ironic?” –Sarah Palin, admitting that her family used to get treatment in Canada’s single-payer health care system, despite having demonized such government-run programs as socialized medicine that will lead to death-panel-like rationing, March 6, 2010
10. “Ohh, good, thank you, yes.” –Sarah Palin, after a notorious Canadian prank caller, posing as French President Nicolas Sarkozy, complimented her on the documentary about her life, Hustler’s “Nailin Paylin,” Nov. 1, 2008 (Read more about the prank call, watch the video and see the transcript)
~Compiled by Daniel Kurtzman
**************************
So, should I cut her a break on being an idiot because she’s a woman?
Annie – do you really want to go through Palin’s statements? That is not a war on women?
No more than a war on you could be called a war on people named “Schulte”, Paul. It would be a war on Conservatives. let’s verify the criteria before making accusations of bigotry.
On Mon, Jun 2, 2014 at 3:41 PM, JONATHAN TURLEY wrote:
> Paul C. Schulte commented: “Annie – do you really want to go through > Palin’s statements? That is not a war on women?” >
angryman – it is just odd that the left attacks strong women or women who bonked Bill Clinton.
I’m sorry. I really don’t mean to be sarcastic but I can’t think of a republican woman; who has made any kind of public statement who has failed open herself up to criticism and condemnation by any thinking American. really; just listen to the idiotic statements these ladies have made. Sarah Palin; Michelle Bachman; and others whose names I have admittedly not bothered to commit to memory. Who can take these ladies seriously? They have become caricatures of themselves.
I don’t think you guys realize how ridiculous your policies and actions seem to anyone who still has a heart and a brain.
I can’t go on. It depresses me and it won’t convince you.
angryman – sorry you are depressed. There are decent drugs to take care of depression.
Sarcasm?
I take decent drugs for that and I would point out that Depressed doesn’t equate with Crazy, Stupid, Gullible or any other adjective that might indicate that my ability to reason, care, or speak clearly and with conviction
angryman – depression does affect judgment, learning, relationships, conversations, etc.
Truly an inspiring collection of “Warm Moments With Sarah”
On Mon, Jun 2, 2014 at 3:31 PM, JONATHAN TURLEY wrote:
> Annie commented: “1. “As Putin rears his head and comes into the air > space of the United States of America, where– where do they go? It’s > Alaska. It’s just right over the border.” –Sarah Palin, explaining why > Alaska’s proximity to Russia gives her foreign policy experie” >
I would gladly accept a cut in EPA funding to allow those funds to go to the VA.
http://www.washingtonpost.com/politics/panel-told-of-troubling-va-underfunding/2012/02/29/gIQAlPqMjR_story.html Many of the hospitals are over 60 years old, feynman.
B-52s are more than 60 years old.
swarthmoremom
I’m not sure funding is the problem. Today, you certainly wouldn’t find a single deficit hawk who wouldn’t even accept a tax increase to give the VA any amount it wanted. So much for their hypocrisy after their filibuster in February.
The wait times are unacceptable but the goals were unobtainable and once set, motivated cheating. But from what I’ve read, vets really like the care they get from the VA – especially those who have been so terribly wounded. Many are sorry to see Shinseki go.
Too many damn wars. Too many dead. Too many wounded. Too many aging.
Just think where we would be if that idiot Bush had not gotten us into Iraq.
Paul,
Hope and Change!
Annie,
Strange how those who are for govt controlled healthcare when they see their system failing can only blame it on lack of money and not govt. being inempt.
Annie – “Yes SWM, rushing to judgment. I wonder how these folks would feel if this young man was their own son?”
How would you feel if your son got captured and beaten in the future because our weak President negotiated with terrorists? He is setting precedent and doing it illegally.
Also, how do you know Palin is an idiot? Because she’s a strong conservative women, she must be the enemy?
Jim22 – the Democrats have a war on strong Republican women. They cannot brainwash them, so they must be marginalized.
SWM,
Strange how those who were/ are all gung ho about the wars don’t realize why there are so many in the VA hospital system.
Annie – we know why there are vets in the VA hospital. All veterans are eligible for care, especially service related injury. The problem is that Obama kept saying he would take care of the problem, but like his other ‘pretend promises’ he didn’t keep his word.
The VA is overcrowded on underfunded. There are too many casualties from Iraq and Afghanistan. In order to leave Afghanistan we will be negotiating with the taliban.
Just put him in this presidents wonderful VA system. Then he’ll know just how bad our govt. can really be.