The longest war in American history is now, finally, winding down. We’re getting out of Afghanistan. And when wars wind down, one thing nations have to do is to get their captured soldiers back. President Obama cited a “sacred rule” of American warfare, that “we don’t leave our men and women in uniform behind.” As it happens, the Taliban held one final US soldier prisoner, Sgt. Bowe Bergdahl. And US negotiators have been trying to work out a prisoner exchange to bring Sgt. Bergdahl home. The contours of the final deal, in which five Taliban detainees being held at Guantanamo were to be freed, initially to Qatar, their actions monitored by the Qatari security forces, and after a year, allowed to go home, have been part of the negotiations since 2011. The Bergdahl family have been kept in the loop for three years, and have been allowed, at times, to go to the press about it.
This last week, though, a video released by the Taliban suggested that Sgt. Bergdahl’s health had deteriorated alarmingly. Back in March, President Obama informed Congress that negotiations had resumed, and that if a deal were made, it might be necessary to move quickly. At that time, Senator John McCain (and many others), spoke out in favor of this specific prisoner exchange. So this past weekend, Bowe Bergdahl was released from Taliban custody. He was reunited with his parents in a Rose Garden ceremony. An American soldier was home! And rejoicing was heard throughout the land!
For a day or two. And then (as Rachel Maddow hilariously reported), a number of conservative Congresspeople found themselves deleting embarrassingly congratulatory tweets. And the narrative shifted, from how great it was to get our last captured soldier back, to how President Obama is a lawless imperial President who needs to be impeached. No kidding.
There are three specific complaints about this deal. I’ll deal with them in order. First, the five released Taliban guys are dangerous terrorists, and their release puts American security at serious risk. So, is this true? How dangerous are these five guys? The answer seems to be sorta kinda, for two of them. The invaluable Vox.com provides this perspective. The two Mullahs, Mohammed Fazl, and Norullah Noori, could still be problematic. Fazl is linked to war crimes, and Noori was once a fairly high ranking Taliban leader. But they’ve both been in Guantanamo since it opened–they were among the first group of prisoners sent there. They haven’t had any kind of operational role with the Taliban for thirteen years. And they’re getting old. And they were almost certainly mistreated during at least some of their time in American custody, subjected to ‘enhanced interrogation techniques,’ to use Dick Cheney’s splendidly Orwellian euphemism for torture. It’s unlikely that thirteen years detention have left them feeling particularly warm and fuzzy about the US, so maybe they’ll be motivated to resume terrorist activities. But, not to be callous, how skilled are they by now? So, yeah, there’s some risk, but it’s very unclear how much.
Second problem: Bergdahl may not have been a model soldier. He’s been accused of deserting his post, and he did write an email back to his folks three days before his capture expressing his disillusionment with the war effort. Rolling Stone published a powerful article in 2012 citing that email. So the notion that Bergdahl was a deeply conflicted soldier, uncomfortable with his role in a war he had come to despise isn’t anything new. But was Bergdahl guilty of desertion? Did he put fellow soldiers at risk? It’s all very unclear. Martin Dempsey, Chairman of the Joint Chiefs of Staff handled it well. He said “concerns about Bergdahl’s conduct are separate from our efforts to recover ANY US service member in captivity.” Adding that Bergdahl, like all Americans, is entitled to a presumption of innocence, he said “Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family.” That sounds about right to me.
But the third major issue raised by the Bergdahl release has to do with its legality. According to the law, the President is supposed to notify Congress thirty days before releasing prisoners from Guantanamo. In this case, he didn’t. He negotiated the trade, then told Congress. Fait accompli. Well, it’s quite possible that President Obama did violate the law. A respected Constitutional scholar, Jonathan Turley, thinks so. Dianne Feinstein, (D-CA) has a problem with it. So did the President violate the law, and if so, how serious is it?
The White House’s rationale for this non-notification is essentially that they couldn’t inform Congress due to exigent circumstances. Waiting thirty days for the transfer would have put Bergdahl’s life in danger. His health was deteriorating rapidly, and a brief window of opportunity opened up in which the Taliban were willing to negotiate. There is, of course, legal precedent for government officials to set aside purely technical legal requirements in order to save life. As I understand it, there’s considerable case law to support an ‘exigent circumstances’ defense. (Or so I’m reliably informed by an internet search; I don’t want to pretend to be a lawyer; I’m not one.) An example would be a medical emergency where you break traffic laws in order to get a family member to the hospital. And this particular and specific negotiation–these five Taliban guys at Gitmo for Bergdahl–had been in the works since 2011. John McCain publicly signed off on it in March of this year. And the President did tell members of Congress that a deal like this might come together quickly.
So Congress was, sort of, notified. Kind of. It’s certainly a legal gray area. To say conclusively, absolutely, that ‘Obama broke the law’ isn’t supported by the facts. What we can legitimately say is ‘some legal experts think he may have broken the law.’ I think it’s fair to say that some Congresspeople are genuinely outraged by what they regard as the illegality of this prisoner swap, that others are pretending to be outraged for political reasons, and that others aren’t outraged at all. And that those levels of outrage are, for the most part, predictably partisan.
But there are two larger points that I would like to make. First, who was actually harmed by this? That’s my problem with Jonathan Turley’s article; he’s sort of a ‘separation of powers’ absolutist, and his approach, though well reasoned, strikes me as unrealistically ivory tower. Any Presidential decision has real-world political consequences. And, yes, it would have been nice if Bergdahl hadn’t been sick, and the President could have announced his intentions and then waited thirty days to implement them. But as I understand the relevant statute, the President just has to notify Congress of prisoner transfers. He does not have to seek Congressional approval for them. So, by not being informed about the deal, what was Congress prevented from doing about it?
Throw a hissy fit. That’s it. That’s all. Congress was prevented from spending thirty days denouncing it. They weren’t able to fit in thirty days worth of political grandstanding. Posturing and speechifying. Bitching and moaning. Complaining. (And not getting anything else done, but that sort of defines this Congress). That seems to me to be what was at stake here, legally. And that’s all. And depriving Congress of more time to gripe about something is not remotely an impeachable offense. So lay off. (Obviously, if I’m wrong about this, then by all means let me know. I’m not, as I’ve said, a legal scholar.)
I don’t defend every aspect of this deal. I think the President did err in making this a big Rose Garden event. Since there are legitimate concerns about Bergdahl’s service, perhaps a quieter ceremony would have been more appropriate. But all this ‘imperial, lawless President’ argle-blargle is silly.
And also this: you’re complaining about the dubious legality of a prisoner transfer? From Guantanamo? Are you serious?
These five Talibani have been held for thirteen years without formal charges being filed against them, with no defined legal status. If they’re prisoners of war, then they are allowed certain rights by the Geneva Conventions, which have been denied them. If they’re terrorists, then the US has an obligation to present evidence sufficient for an indictment on terrorism charges, and try them. But no, they’re neither POWs or criminals. They’re ‘enemy combatants,’ in a legal limbo in which they can’t be given a civilian trial, but in which they also can’t be released, because they’ve been determined to be dangerous criminals. They’re just being. . . detained. Held, illegally, for thirteen years. In the company, by the way, of dozens of prisoners who have been cleared for release, but can’t be freed for various diplomatic and political reasons. These guys have been held, in violation of every relevant international law, and in violation of American law. And we’ve done it, for thirteen years, because we can, because we’ve got the guns and soldiers and facilities to make it stick. And now, after thirteen years of illegal detention, conservatives are angry because, in exchanging them for an American POW, the President didn’t follow a deadline? You’re calling for his impeachment because of issues of time frame? Are you freaking kidding me?
Bowe Bergdahl gets to go home. Bob and Jani Bergdahl get their son back. In my opinion, there are exactly two things we, his fellow Americans, should say about the entire situation, all of it, the whole thing, every single part.
Welcome home, soldier. A grateful nation thanks you for your service.