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.
A side note
President Bush released the terrorist who planned the Benghazi attacks from Guantanamo prison in 2007.
IL, It is STILL Obama’s fault that Bush released the guy! Obama should have gone after and gotten him back.
Bob,Esq: “show me the law that states the United States shall deem a state of war to exist with Iraq upon failure to fully comply with U.N. sanctions.”
That you don’t know Saddam’s compliance was the reason for US military action with Iraq from 1991 onward clarifies you’re against OIF because you didn’t understand it in the first place. Bush, Clinton, and Bush relied on P.L. 102-1. The issue stayed active while Saddam’s refusal to comply dominated Clinton’s foreign affairs.
This is a Congressional reinforcement, from 1997, for the President to use the military – unilaterally, if necessary – to enforce Iraq’s full compliance. Bush inherited this, too. Note the diverse, bipartisan group of Congressmen who submitted the bill.
Sen. Dick Durbin of Illinois, the Senate’s No. 2-ranked Democrat….”The law on notification “doesn’t square with reality.”
Really Dick?
Why was the law passed if it “didn’t square with reality?”
Why did the president sign the law if it “didn’t square with reality?”
Is anyone in Congress, from either side of the isle saying;
1.”We had to have 30 days notice.”
(This is the law.) Or are they saying;
2. We know circumstances may change and situations may be fluid so simply notifying us prior to such action is reasonable?”
I’ve only heard #2. This is another glaring example of a president that refuses to work with Congress.
Why do people keep defending this behavior?
Since Obama has established this precedent, I trust you’ll all be defending President Allen West when takes similar action in January 2017. Right?
Bob,Esq,
From Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq (2002):
Again, the 2002 statute wasn’t novel. The President had been authorized to use the military to enforce with Iraq since 1991. But Congress repetitively reinforced it with Clinton and Bush.
Bob,Esq: “Please show me the law that states the United States shall deem a state of war to exist with Iraq upon failure to fully comply with U.N. sanctions.”
Bob, you just stated the basis of the Gulf War. The war threshold was passed at the beginning. The Gulf War ceasefire and UNSC resolutions were (obviously) enforced on the same basis of the Gulf War.
While Clinton relied on PL 102-1 for his military actions with Iraq, Congress continued to pass laws during the Clinton admin that reinforced the established base of the President’s authority to use the military to bring Iraq into compliance. Bush, of course, inherited all of that from Clinton, just as Clinton inherited the foundational PL 102-1 from Bush (father).
Bergdahl was a POW of the Taliban. Now he is a POW of the Democrat Party.
When will the Democrat Party release Sgt. Bergdahl?
Why is the Democrat Party holding Sgt. Bergdahl as a POW?
DEMOC RATS, RELEASE SGT. BERGDAHL NOW!!!
Sen. Dick Durbin of Illinois, the Senate’s No. 2-ranked Democrat, presented the timeline as an explanation for why President Barack Obama didn’t inform Congress 30 days before the May 31 prisoner trade….”They knew a day ahead of time the transfer was going to take place,” Durbin told reporters in the Capitol, where military officials briefed the Senate Armed Services Committee behind closed doors. “They knew an hour ahead of time where it was going to take place.”
…
Defending the administration’s conduct, Durbin blasted his colleagues in Congress for focusing on the lack of notification, even if one of the loudest critics has been a party colleague: Sen. Dianne Feinstein of California, who heads the Senate Intelligence Committee.
“Are we saying that once we decided to do the prisoner transfer, we had to notify Congress and wait 30 days?” Durbin asked. “The president couldn’t do that. It was impossible. It could have endangered the man’s life by waiting 30 days.”
The law on notification “doesn’t square with reality,” he added.
http://www.aol.com/article/2014/06/10/senator-Dick-Durbin-bergdahl-deal-sealed-day-before-swap/20910042/?icid=maing-grid7%7Cresponsive-test1%7Cdl2%7Csec1_lnk3%26pLid%3D486622
i,citizen: “people like Bob,Esq persistently misunderstand it as the casus belli. The procedural trigger was always whether Iraq proved compliance
Just like that, the nation goes to war.”
Casus belli? Procedural trigger?
Please show me the law that states the United States shall deem a state of war to exist with Iraq upon failure to fully comply with U.N. sanctions.
Not the United States in your imagination but these United States here in reality.
The October 2002 NIE v. Redacted White Paper; the Niger allegation and the 9/11>>Iraq lies were the fraudulent representations needed to convince the country to go to war.
“Fraud is kaleidoscopic, infinite. [And that] being infinite and taking on protean form at will, were courts to cramp themselves be defining fraud with hard-and-fast definition, their jurisdiction would be cunningly circumvented at once by new schemes beyond the definition… Accordingly definitions of fraud are of set purpose left general and flexible and thereto courts match their astuteness against the versatile inventions of fraud-doers.” (Stonemets v. Head, 1913)
You’re just the Right side of the fanatically loyal equation.
Here’s your oath:
I, (Name of Bush faithful), do utterly testify and declare in my conscience that the King’s Highness is the only supreme governor of this realm AND UNIVERSE AND ALL OTHER PARALLEL UNIVERSES, and of all other his Highness’s dominions and countries, as well in all spiritual or ecclesiastical things or causes, as temporal, and that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority ecclesiastical or spiritual within this realm AND UNIVERSE AND ALL OTHER PARALLEL UNIVERSES; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the King’s Highness, his heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges and authorities granted or belonging to the King’s Highness, his heirs or successors, or united or annexed to the imperial crown of this realm. So help me God, and by the contents of this Book.
Thanks, Eric.
The tl,dr is Bush was right on the law and policy re Saddam, but Bush tripped on the politics.
In the politics, the pre-war intelligence was misrepresented as evidence. However, people like Bob,Esq persistently misunderstand it as the casus belli. The procedural trigger was always whether Iraq proved compliance. Under Clinton, Saddam was established as a clear and present danger and the policy of Iraqi compliance via regime change was preformed so that intelligence (or evidence) was not a required element. That said, while the pre-war intelligence wasn’t evidence, it wasn’t bad when judged by the proper bar for intelligence – as indicators. The Duelfer Report confirmed Saddam was guilty and the containment failed. To avoid the political error, Bush simply should have reiterated Clinton’s preformed case for regime change with the addition of the heightened threat consideration post-9/11 and, perhaps, the intelligence properly presented as indicators rather than evidence.
Annie: “Eric, our troops aren’t the sacrificial lambs that will keep Al Queda from harming us here. . . . America is war weary.”
We may be “weary” of war, but that doesn’t mean the war is weary of us. This isn’t a kid’s game. The contest is over either when we end the enemy as a threat to us or the enemy ends us as a threat to him.
Our soldiers haven’t been sacrificial lambs. They’ve been fighting the enemy as our champions while building the peace for future generations. They’ve been more effective than you credit them.
http://news.nationalgeographic.com/news/2013/13/130420-homegrown-terrorism-tsarnaev-brothers-boston-marathon-bombings-islam-radicalism/
In other words, Obama inherited a counter-terror campaign that was firmly progressing towards ending the enemy as a threat. Obama simply needed to stay the course. Had he done so, instead of worrying about the terrorists resurging in Libya, Syria, Iraq, and the future of Afghanistan, we might be looking forward to the foreseeable end of the enemy as a threat.
Instead, Obama is squandering the dearly won progress earned by our soldiers. Now add to the enemy’s resurgence in the gaps opened by diminished American leadership under Obama this shocking release of the 5 most dangerous, senior Taliban commanders into the world community. No trial, of any kind. Not even transferred to Afghanistan’s custody. A virtually unconditional release. That goes beyond just squandering his presidential inheritance. Obama actually seems to be trying to reverse the trend in favor of the enemy.
That is an amazing story Chuck.
Last Thursday, Washington DC sanitation workers found approximately 500,000 “IMPEACH OBAMA FOR LEAVING AN AMERICAN BEHIND IN AFGHANISTAN” signs. Where were they you ask?
In the dumpster behind the headquarters of the Republican National Committee.
Story at the link, with photo.
http://azstarnet.com/news/blogs/fitz-blog/article_6aa17163-d75e-5f2d-89d5-f28482441c00.html
Sorry, 4:14, the first draft went out.
NEW YORK CITY has not said a word about Obama releasing the Muslims who blew up the Twin Towers on 9/11. How can they be considered tradable pawns by Obama when they are criminals who blew up New York City?
This is really some kind of fundamental transformation. The President arbitrarily lets the criminals out of prison??? Maybe there’s some “intelligence” operation going on. Like when the intell community attempted to make us think that hapless Oswald killed Kennedy. Maybe Bergdahl is a patsy. Maybe they’re fixin’ to take out Bergdahl with a Jack Rudy character before Bergdahl spills the beans.
This is weird.
NEW YORK CITY has not said a word about Obama releasing the Muslims who blew up the Twin Towers on 9/11. How can they be considered tradable pawns by Obama when they are criminals who blew up New York City? This is really some kind of fundamental transformation. The President arbitrarily lets the criminals out of prison??? Maybe there’s some “intelligence” operation going on. Like when the intell community attempted to make us think that hapless Oswald killed Kennedy. Maybe they’re fixin’ to take out Berhdahl with a Jack Rudy character before Berhdahl spills the beans.
This is weird.
Bergdahl was a criminal who abandoned his post voluntarily and deserted. Obama released the people responsible for 9/11 and enemy combatants. These were co-conspirators of Osama Bin Laden.
Obama released criminals. That is a crime. Obama committed a crime.
The Taliban co-conspirators that Obama released should have been held or prosecuted.
Obama must be prosecuted.
America is at a Constitutional “Tipping Point.”
Bob,Esq.,
This explains why you believe Bush was wrong even though he was right.
(Bottomline up front: “By 2002, opponents of OIF had in effect adopted the standard of compliance preferred by Saddam Hussein, by which Iraq would have satisfied its burdens and obligations to the UN by 1994, in other words, before Saddam’s son-in-law revealed Iraq’s hidden WMD stocks.”)
http://learning-curve.blogspot.com/2012/05/problem-of-definition-in-iraq.html
Again, the UNMOVIC findings of Iraq’s noncompliance were enough, but if you need more to satisfy your doubts, read the Duelfer Report.
Bob,Esq.,
There’s no “alleged”. Saddam wasn’t presumed innocent until proven guilty. He was already found guilty. Saddam was required to prove his innocence.
The test for Saddam was pass/fail, and he never passed it. Bush didn’t make up the test. It was the same test for Saddam since 91. The inspections, sanctions, and no-fly zone were based on the same test. Desert Fox was based on the same test. Iraqi Freedom was based on the same test.
Remember, Desert Storm was suspended short of regime change by a ceasefire that was contingent on Saddam passing the test. Bush didn’t make up the threat of Saddam. The ceasefire was defined by the threat of Saddam. Saddam’s behavior with Clinton made the threat worse and forced Clinton to classify Saddam as a clear and present danger.
Bush didn’t say a mushroom cloud was “imminent”. The “illusion” of Saddam’s threat was simply Bush describing the established threat of Saddam and adding the post-9/11 threat environment. Add 2 and 2, and guess what, you’re going to get 4.
The threat of Saddam wasn’t an “illusion” anyway. Read the Duelfer Report. Saddam was guilty in fact, not just presumptively. I, citizen only quoted some of the report. There’s a lot more than that.
You want to feel relief over a crisis averted? Read the part about how Saddam was the same ambitious and just as committed to WMD, yet growing increasingly irrational and unchecked, while also consolidating power.
This bit of the report alone validates Bush’s decision:
Bob, one guess which part of Saddam’s regime worked with terrorists, handled Saddam’s in-house black ops, repressed the Iraqi people, and was famously notorious for all of the above. Did you guess the IIS?
Look, I get you’re hung up on the intel. You’re not alone. It did turn out that our intel wasn’t precisely accurate – just maybe, Saddam’s “denial and deception operations” that also flummoxed our intel and inspections during the Clinton admin had something to do with that. I agree that Bush shouldn’t have characterized intel as “evidence”. Generally speaking, intel is not evidence, and doesn’t serve that function. But the intel was more right than it was wrong, and it was more than right enough for the threat of Saddam and the standard of the ceasefire.
“Stupid is as stupid does.”
John, our allegedly smart president keeps doing stupid things. And, he employs stupid, but LOYAL people. What did Forrest Gump say about stupid?