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.
@ Bob, Esq.; So your justifying Obama’s and other Dems behavior because they “raged” against the same wrong behavior in 2008?
I can name five well known attorneys that I scorn. Do you have any idea how many scoundrels are attorneys?
Sully[The Dish] is not an attorney. Toobin and JT are. Sully should be listening to attorneys, not vice versa.
Steve Kellam, She interjected herself into the discussion by making unsavory comments about the POIW.
How is Sarah Palin or the VA associated with the 5 Gitmo detainees or Bergdahl?
angryman – I do not feel that I have to be socially responsible for people who cannot be.
Did Turley or Toobin mention the signing statement?
From The Dish:
“Note that the President wrote this in his signing statement: “Section 1035 does not . . . eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.”
When pressed on how the White House circumvented the law, Defense Secretary Chuck Hagel cited the signing statement.
If that sounds legally questionable to you, you agree with Democrats in the George W. Bush era—including Senator Barack Obama. Democrats raged against Bush’s use of signing statements, which they insisted was unconstitutional. Answering a questionnaire from reporter Charlie Savage, then of the Boston Globe, in 2008, Obama wrote:
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
Bob, Esq – no one knows less about foreign affairs but thinks they know more than Barack Obama.
Jim22: “Also, how do you know Palin is an idiot?”
Paul: “the Democrats have a war on strong Republican women. They cannot brainwash them, so they must be marginalized.”
Seriously guys?
“Palin, who was thoroughly unversed in foreign affairs, is described as unresponsive, even immature in her interview and debate preparation sessions.
“When her aides tried to quiz her, she would routinely shut down,” the authors write. “Chin on her chest, arms folded, eyes cast to the floor, speechless and motionless, lost in what those around her described as a kind of catatonic stupor.”
http://www.csmonitor.com/Books/2012/0308/5-revelations-from-Game-Change/Sarah-Palin-s-utter-incompetence
Palin didn’t even know who the Axis powers were in WWII for Christ’s sake!
There’s stupid and then there’s scary stupid.
Some people value their integrity. Others toss it away with false statements.
Annie wrote:
“So is Nathan Bradley Bethea among the “pathological”?
How is the comment @2:15 civil?”
It isn’t, but he gets away with the same kind of BS day after day, thread after thread. It’s tiresome.
JT and now Jeffrey Toobin have both stated the President clearly broke the law by not giving Congress 30 day notice.
As I’ve learned from being an investigator, you often learn more by what people don’t say. To date, only Republicans have slammed the President on this swap. However, I do not see or hear Dems coming to the defense of Obama. I expect Pelosi and a few others in safe districts will chime in. But, the silent is deafening so far.
@feynman Above you stated;
“But I’d be very surprised if they feel he should have been left to rot in the hands of the Taliban. They may rail at the trade, but alone in the middle of the night, I don’t think they feel he should have been left behind.”
Here’s what some from his platoon have stated per The Weekly Standard ‘We Swore to an Oath and We Upheld Ours. He Did Not.’
Whether a deserter or collaborator, the mere mention of Bergdahl’s name generates the strongest of human emotions among those who served alongside him or participated in attempts to rescue him. ”Guys are dead because of him,” says one soldier involved in recovery operations. “Several KIA and others severely wounded.”
“The amount of pain he’s caused,” says one of Bergdahl’s platoon mates, his voice trailing off. After a long pause, he resumes. “The time he was DUSTWUN was the most miserable time of my life. It was absolute hell. A bunch of us had a pact if we found him. We’d each get him in a room for five minutes and short of killing him we could do what we want.”
“There were times—there are still times—when I turn on the TV and I wish they’d just beheaded him on TV and gotten it over with.”
To those that claim the CIC has sole discretion to release POW’s……..from the same article;
“This is very serious,” says Representative Buck McKeon, chairman of the House Armed Services Committee. McKeon says the National Defense Authorization Act, which passed out of his committee on a vote of 59-3, required the administration to give Congress a 30-day advance notification on Guantanamo transfers. “This administration has flouted the law again and again and again. We will be having hearings about this.”
You people are delusional.
Steve, The law says transfer, NOT release. It was passed to keep Guantanamo open, and then the Obama haters could say that Obama did not keep his promise to close it. To give a hypothetical example, if Congress passed a law prohibiting funds for feeding the POWs in Guantanamo, Prof Turley and the legal nitpickers would denounce Obama for transferring funds to feed them. They would prefer that they starve to death to comply with that law than to use common sense and humanity. The President has the power to release POWs as CIC and nothing Congress can do can change that. Congress cannot pass a law removing Obama as CIC, but I guess that all of the Obama haters think that they can now. I am reminded of what Congress did when T Roosevelt was in charge. They passed a law prohibiting him from sending the Great White Fleet on the world tour. He simply said he had enough funds to send them to Japan, and it would be up to Congress to bring them back. Think he was going against the law or Constitution? I don’t.
Once again, I have to think that those who say the released POWs are a threat cannot think at all. First off, taking US troops “hostage” in a war zone is quite preferable to killing them. Unless of course, those who are against taking US troops prisoner are in favor of them being killed instead. How about that Nick? Think our troops being killed is preferable to taking them prisoner? Then as to how much a threat they are, these people forget that if they do return to the battlefield, it means we can KILL them legally, instead of keeping them and feeding them and in good repair. One would think that some folks think that they will be in NYC stalking US citizens and looking for hostages, instead of being in a war zone where US forces are LEGAL targets, and are ARMED. In short, all I have seen so far are delusional anti-Obamabots who toss common sense and decency overboard to attack him.
Well, you don’t seem so unreliable to me Randyjet. And what a Handy Dandy handle Randyjet. LOL.
You make some excellent points. I agree with much of Professor Turley’s work but not with his insistence on prosecuting Obama.
I may even agree on some points that Obama has acted less than wisely but really; since when do we hold Presidents accountable for crime committed in the performance of their duties. Nixon? Yeah. Nixon was forced to retire to his Mansion in California. Well that sure taught him a lesson.
Of course Nixon’s crimes were to do with Burglary and extortion. Intimidation and Blackmail. Serious stuff.
Obama it seems has failed to ask Congress for permission to act in his role as Commander in Chief
What else? Anyone compiled a comprehensive list of the crimes of the President yet?
How about that crime of lying to the wealthy to get them to agree to participate in a program that will primarily benefit those who are “less than wealthy”.
And what is the big complaint from these wealthy worthies now? Is it that he lied? Well yes they do drone on about that but they really get charged up and twisted in a knot when they begin to whine about how much money they are having to spend. “Oooooh; my insurance is so expensive now. I might have to forego the ‘Fois Gra’ this week.”
“It’s not fair; not fair; not fair.”
What’s not fair is your greed and selfishness.
What’s not fair is the suffering of the American people.
(Again I speak of the “American People” defined as 100% of the population of this nation; NOT the Republican definition of “American People” which is: “All those who have enough money to be seen from our lofty height.” “All whom we consider worthy of inclusion to be determined in accordance with the current political and military situation we find ourselves embroiled in”)
I see I was perhaps unclear. I realize that you are not one of those opposing Obama’s actions or recommending impeachment. I may noy have been crystal.
We can only hope that they chipped the 5– then maybe the truth would be seen…
We certainly have the face recognition to pick them up later for drone strikes when they get back in action.
Feynman, that is true.
I think someone needs to be called on it. It makes a mockery of any kind of civility rules. And such a statement is terribly offensive to me personally. I, too, have relatives that served.
Feynman, such statements are made to incite. I’m sure I was included in that bit of nonsense, I’m slowly learning some things are so outrageous it’s not even worth responding to.
What is apparent, is someone has made a statement that I am just fine with veterans dying.
I protest.
What a joke Obama 1-5 no 1-1 only
Twenty minutes later and there is no reposting of any statement I made that I am just fine with veterans dying.
A false statement has been made about me by a fellow commenter. I protest.