The Strange Case of Bowe Bergdahl

By now you have doubtless heard of Bowe Bergdahl, the American soldier who was recovered after five years of captivity in the hands of the Taliban–and who had to be recovered via a prisoner swap with the Taliban. I am glad for Bergdahl and his family–he longed to be back in the United States, I am sure, and his family longed to have him with them. But that doesn’t change the fact that there are serious concerns regarding Bergdahl’s case. Those concerns are alluded to here:

Amid jubilation Saturday over the release of U.S. Army Sgt. Bowe Bergdahl from captivity by the Taliban, senior Republicans on Capitol Hill said they were troubled by the means by which it was accomplished, which was a deal to release five Afghan detainees from the military prison in Guantanamo Bay, Cuba.

Top Republicans on the Senate and House armed services committees went so far as to accuse President Obama of having broken the law, which requires the administration to notify Congress before any transfers from Guantanamo are carried out.

“Trading five senior Taliban leaders from detention in Guantanamo Bay for Bergdahl’s release may have consequences for the rest of our forces and all Americans. Our terrorist adversaries now have a strong incentive to capture Americans. That incentive will put our forces in Afghanistan and around the world at even greater risk,” House Armed Services Committee Chairman Howard P. McKeon (R-Calif.) and the ranking Republican on the Senate Armed Services Committee, James M. Inhofe (Okla.), said in a joint statement.

Lawmakers were not notified of the Guantanamo detainees’ transfer until after it occurred.

The law requires the defense secretary to notify relevant congressional committees at least 30 days before making any transfers of prisoners, to explain the reason and to provide assurances that those released would not be in a position to reengage in activities that could threaten the United States or its interests.

The Obama administration claimed that because of what it termed “unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement.” The problem with this argument is that it may well be legally unavailing. Even Jeffrey Toobin, who ordinarily sacrifices intellectual honesty and rigor to advance a particular partisan and ideological agenda through his writings, is forced to call shenanigans on the Obama administration’s behavior in the Bergdahl case:

CNN legal analyst Jeffrey Toobin declared on Monday that President Barack Obama “broke the law” when his administration failed to give Congress notice of at least 30 days before releasing five ranking Taliban members from Guantanamo Bay. Toobin said that a presidential signing statement did not absolve Obama from culpability for failing to abide by the law mandating congressional notification.

“I think he clearly broke the law,” Toobin said. “The law says 30-days’ notice. He didn’t give 30-days’ notice.” Toobin added that Obama’s opinion expressed in a signing statement “is not law.”

“The law is on the books, and he didn’t follow it,” Toobin added.

CNN anchor Wolf Blitzer noted that former President George W. Bush also issued signing statements even though they thought their action may not have been constitutional or legal. “But liberals were outraged by George W. Bush’s signing statements,” Toobin noted.

“You realize, of course, you’re accusing the President of the United States of breaking the law” Blitzer observed.

“I do think that his critics have a very good point here,” Toobin asserted. He noted that Congress and the courts are unlikely to do anything about it. “But, you know, it matters whether people follow the law or not,” he concluded.

And of course, more luminous legal lights than Toobin have concluded the same thing. Here is Ilya Somin on the matter:

The Obama administration’s recent decision to release five high-ranking Taliban commanders in exchange for captured soldier Bowe Bergdahl clearly violates a 2013 law that requires that Congress be given 30 days advance notice of such releases. While the Obama administration has previously suggested that the the 30 day notice requirement is unconstitutional, it is in fact authorized by Congress’ power to make “rules for the Government and Regulation” of the armed forces.

Read the entire analysis. The White House has been forced to apologize for having failed to alert Senate Intelligence Committee chair Dianne Feinstein of the prisoner swap. One wonders why the rest of Congress doesn’t deserve an apology as well. Meanwhile, it is worth noting that Bergdahl may have engaged in some misconduct of his own:

For all the yellow ribbons strewn across his hometown in Idaho and the gratitude expressed by his parents in an emotional visit to the White House on Saturday, it’s looking increasingly unlikely that Army Sgt. Bowe Bergdahl will receive a hero’s welcome when he returns to the United States after nearly five years in Taliban captivity.

From military forums across the country, a groundswell of anger is rising over the Obama administration’s silence on perhaps the most controversial question surrounding the deal that freed Bergdahl in exchange for five senior Taliban members: Was he a deserter?

So far, the U.S. government has shied away from the long-nagging question, which raged anew Monday with growing clamor on the Internet about the circumstances of Bergdahl’s disappearance from his unit’s small forward position in Afghanistan on June 30, 2009.

Military-related blogs, Twitter accounts and Facebook pages were filled with screeds from commenters accusing Bergdahl of being a “traitor” or a Taliban “collaborator.” The online publication The Daily Beast published a nearly 2,000-word first-person account by a former Army infantry officer who said he was privy to details of Bergdahl’s disappearance and who stated flatly that “he was a deserter, and soldiers from his own unit died trying to track him down.”

The mother of one of six soldiers who’ve been identified as being killed in circumstances related to the search for Bergdahl was furious over the opaque handling of the case, telling Army Times that the Pentagon “really owes the parents of these fallen soldiers the truth.”

But instead of addressing the desertion issue head-on, complained many military analysts and war veterans, the Obama administration is allowing the debate to fester, only deepening the skepticism of current and former service members who demand to know how Bergdahl left his unit, how many U.S. forces were killed in the search effort, and whether there are plans to conduct a legal review of his case and, if necessary, prosecute him.

Michael Waltz, who as an Army major commanded U.S. Special Forces in eastern Afghanistan at the time Bergdahl disappeared, said the sergeant deserted and shouldn’t have been accorded POW status.

“He just walked off after guard duty and wandered into the nearby village,” Waltz told McClatchy in an interview Monday. “This guy needs to be held accountable when the time is right, of course. Every American deserves to come home. I’m happy for his family. But he needs to be held accountable.”

More:

Sometime after midnight on June 30, 2009, Pfc. Bowe Bergdahl left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life. He slipped off the remote military outpost in Paktika Province on the border with Pakistan and took with him a soft backpack, water, knives, a notebook and writing materials, but left behind his body armor and weapons — startling, given the hostile environment around his outpost.

That account, provided by a former senior military officer briefed on the investigation into the private’s disappearance, is part of a more complicated picture emerging of the capture of a soldier whose five years as a Taliban prisoner influenced high-level diplomatic negotiations, brought in foreign governments, and ended with him whisked away on a helicopter by American commandos.

The release of Sergeant Bergdahl (he was promoted in captivity) has created political problems for the Obama administration, which is having to defend his exchange for five Taliban detainees held at Guantánamo Bay, Cuba, but it also presents delicate politics for Republicans who are attacking, through surrogates, America’s last known prisoner of war.

The furious search for Sergeant Bergdahl, his critics say, led to the deaths of at least two soldiers and possibly six others in the area. Pentagon officials say those charges are unsubstantiated and are not supported by a review of a database of casualties in the Afghan war.

“Yes, I’m angry,” Joshua Cornelison, a former medic in Sergeant Bergdahl’s platoon, said in an interview on Monday arranged by Republican strategists. “Everything that we did in those days was to advance the search for Bergdahl. If we were doing some mission and there was a reliable report that Bergdahl was somewhere, our orders were that we were to quit that mission and follow that report.”

Still more:

It was June 30, 2009, and I was in the city of Sharana, the capitol of Paktika province in Afghanistan. As I stepped out of a decrepit office building into a perfect sunny day, a member of my team started talking into his radio. “Say that again,” he said. “There’s an American soldier missing?”

There was. His name was Private First Class Bowe Bergdahl, the only prisoner of war in the Afghan theater of operations. His release from Taliban custody on May 31 marks the end of a nearly five-year-old story for the soldiers of his unit, the 1st Battalion, 501st Parachute Infantry Regiment. I served in the same battalion in Afghanistan and participated in the attempts to retrieve him throughout the summer of 2009. After we redeployed, every member of my brigade combat team received an order that we were not allowed to discuss what happened to Bergdahl for fear of endangering him. He is safe, and now it is time to speak the truth.

And that the truth is: Bergdahl was a deserter, and soldiers from his own unit died trying to track him down.

There is a question as to whether Bergdahl will face a firing squad, though I certainly doubt that it will come to that. Meanwhile, to quote Lando Calrissian, this deal is looking worse all the time:

Qatar has moved five Afghan Taliban prisoners freed in exchange for a U.S. soldier to a residential compound and will let them move freely in the country, a senior Gulf official said on Tuesday, a step likely to be scrutinized by Washington.

U.S. officials have referred to the release of the Islamist militants as a transfer and said they would be subject to certain restrictions in Qatar. One of the officials said that would include a minimum one-year ban on them traveling outside of Qatar as well as monitoring of their activities.

“All five men received medical checks and they now live with their families in an accommodation facility in Doha,” the Gulf source, who declined to be identified, told Reuters. “They can move around freely within the country.”

Are we supposed to be pleased with this state of affairs? Or with this?

The five Guantanamo detainees released by the Obama administration in exchange for America’s last prisoner of war in Afghanistan, Sgt. Bowe Bergdahl, are bad guys. They are top Taliban commanders the group has tried to free for more than a decade.

According to a 2008 Pentagon dossier on Guantanamo Bay inmates, all five men released were considered to be a high risk to launch attacks against the United States and its allies if they were liberated. The exchange shows that the Obama administration was willing to pay a steep price, indeed, for Bergdahl’s freedom. The administration says they will be transferred to Qatar, which played a key role in the negotiations.

In the initial statements released about the deal, the White House declined to name the detainees who would be leaving the Cuba based prison Obama has been trying to close since his first day in office.

A senior U.S. defense official confirmed Saturday that the prisoners to be released include Mullah Mohammad Fazl, Mullah Norullah Noori, Abdul Haq Wasiq, Khairullah Khairkhwa and Mohammed Nabi Omari.

While not as well known as Guantanamo inmates like 9-11 mastermind Khalid Sheikh Mohammed, the Taliban 5 were some of the worst outlaws in the U.S. war on terror. And their release will end up replenishing the diminished leadership ranks of the Afghan Taliban at a moment when the United States is winding down the war there.

Of course, it should surprise no one to know that the usual suspects on the port side are busy informing us that we should not be allowed to discuss any details whatsoever of Bergdahl’s possible desertion, of the fact that soldiers lost their lives searching for him, and of the fact that the Obama administration failed to give proper notice to Congress about the entire affair. Again, I want to state that I am personally happy for Bergdahl in that he has been released by the Taliban, and that he is reunited with his family. And to be sure, Bergdahl is innocent of any charges against him until proven guilty. But contrary to port side opinion, it is possible to be both happy for Bergdahl’s release, and at the same time, concerned about the possibility that he might have deserted, and that his desertion may have cost the lives of American soldiers who were tasked with the responsibility to go look for him. It certainly is possible to be displeased with the fact that the Obama administration broke the law by failing to give Congress notice of the prisoner transfer. And it certainly is possible to be displeased with the fact that a prisoner transfer took place; one that will encourage other terrorist groups to take Americans prisoner in the hopes that they will force the United States to bargain and give something away in order to secure the release of an American captive. There is a reason why the United States traditionally states that it does not negotiate with terrorists. That reason appears to have been forgotten by both the Obama administration and its apologists.

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