A Problematic POW, Ctd

Andrew Sullivan —  Jun 4 2014 @ 11:35am

Idaho Hometown Of Released Army Solider Bowe Bergdahl Celebrates His Release

The president’s decision to exchange five Taliban leaders for Bergdahl continues to draw outrage, and not just from the Palinites. For instance, Ilya Somin doesn’t buy the White House’s legal rationale for not giving Congress advance notice of the deal:

The biggest problem with this argument is that the 30 day notice requirement contains no exception for “unique” circumstances where the President or the secretary of defense believe that obeying it might endanger a soldier’s life. The National Defense Authorization Act and other national security legislation contain numerous provisions that can be waived in appropriate circumstances by the president or the secretary. There is no such waiver or exception in the 30 day notice requirement.

If the president can get around the law anytime he or the secretary of defense believe that it might save a soldier’s life, then he could disregard almost any congressional restrictions on warmaking. For example, President Bush and Secretary of Defense Donald Rumsfeld surely believed that their violations of congressional statutes barring torture of prisoners would help save soldiers’ lives. It is true that the president has the duty of “protecting the lives of Americans abroad and protecting U.S. soldiers.” But in pursuing those objectives, he must stay within the bounds of laws enacted by Congress, whether they be laws restricting torture, or laws restricting the release of brutal terrorists. Candidate Obama understood that when he rightly criticized President Bush back in 2008. President Obama, however, often seems to forget.

Protecting and rescuing an actual, endangered POW on the battlefield strikes me as exactly the kind of exception usually allowed for in executive actions. This was not some kind of ongoing policy; it was a decision to exchange prisoners, requiring secrecy and dispatch. We also find that the health of Bergdahl was a real question:

A secret intelligence analysis, based on a comparison of Taliban videos of Sgt. Bergdahl in captivity in 2011 and December 2013 that were provided to the U.S., found that the soldier’s rate of deterioration was accelerating. The latest video, provided to U.S. officials by mediators in Qatar, has never been publicly shown. Officials who have seen the video described Sgt. Bergdahl’s condition as “alarming.”

But Andrew Rudalevige sees Obama’s signing statement flying in the face of his past criticism of George W. Bush:

As part of the process of negotiating his release, the president decided to override a section US-POLITICS-OBAMA-BERGDAHLof the fiscal 2014 National Defense Authorization Act (Section 1035(d) for those keeping score at home) requiring that Congress receive notification 30 days in advance of a transfer of a Guantanamo detainee. When he signed the bill into law in late 2013, Obama issued a statement noting that while Section 1035 was “an improvement over current law,” “in certain circumstances, [it] 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.”

Presumably the administration decided that this was one of those circumstances and — like the Bush administration before it — declined to enforce what it felt was an unconstitutional constraint on the president’s powers as commander in chief. This might be defensible — but it ran hard into those past promises.

In Drum’s view, a court ruling on these powers would be constructive:

This would be useful for a couple of reasons.

First, it would be a sign of whether Republican outrage is serious. If it is, they’ll file suit. If they don’t file, then we’ll all know that it’s just partisan preening. … This is fine if a dispute truly is political. But this, like many other so-called political disputes, isn’t. It’s a clear question of how far the president’s commander-in-chief authority extends and what authority Congress has to limit it. If Republicans truly believe Obama violated the law, they should be willing to go to court to prove it. And courts should be willing hand down a ruling.

Speaking of “partisan preening”:

Obama’s sudden willingness to buck Congress on releasing Gitmo prisoners raises some questions for Amy Davidson:

President Obama’s signing statement on the bill said that it might be unconstitutional if it kept him from acting “swiftly in conducting negotiations with foreign countries,” and, indeed, there is something constitutionally odd about a law designed to keep a specific list of people—some of whom, it can’t be said often enough, have been found not to be threats—imprisoned without trial.

But Obama should not get a pass on this. He has, in general, dealt with congressional attempts to keep him from closing Guantánamo, such as restrictions on spending certain funds to move prisoners, with a sort of learned helplessness, as if all his good will had faced an impassable wall. He has not tried to find the everyday limits of the various restrictions, or challenged them, substantively, in less hectic circumstances. Bergdahl has been a prisoner for years. What else, by that standard, might count as an emergency?

And Greenwald wonders how, in light of this decision, Obama can justify not closing down the facility entirely:

The sole excuse now offered by Democratic loyalists for this failure has been that Congress prevented him from closing the camp. But here, the Obama White House appears to be arguing that Congress lacks the authority to constrain the President’s power to release detainees when he wants. What other excuse is there for his clear violation of a law that requires 30-day notice to Congress before any detainees are released?

But once you take the position that Obama can override — i.e., ignore — Congressional restrictions on his power to release Guantanamo detainees, then what possible excuse is left for his failure to close the camp? … Obama defenders seem to have two choices here: either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?

Meanwhile, the NYT reports that Bergdahl had left a note in his tent the night he went missing to say that he was deserting on purpose. Allahpundit sees another argument in favor of Bergdahl’s release collapsing:

Which would be worse: If Obama didn’t know about the note before making the swap, or if he did know and went ahead with it anyway? … There are vets in Bergdahl’s squad angrily accusing the guy of desertion and, more damningly, the parents of fallen soldiers blaming Bergdahl for their sons’ deaths. When you’ve got people as sympathetic as that hammering you in the media, the only smart play is “I’ll do anything to recover a missing soldier, period.” Message: I care.

But as I say, it’s not true: The White House would have had no problem leaving Bergdahl behind if the Taliban’s ask was Khaled Sheikh Mohammed instead of the five lower-profile savages we handed back to them.

Beutler finds this argument incomprehensible:

I hold no brief for Bergdahl, and take no issue with the Army launching an inquiry into the circumstances of his disappearance. But the inquiry wouldn’t be happening if the military hadn’t first secured his release. Having secured his release, they can now determine whether he deserves to be disciplined by the U.S. military. If you agree with the military’s leave-no-man-behind ethos, then this is the correct order of operationseven if the inquiry yields the most damning possible conclusions. Taking conservatives at their wordand here I’m talking about conservatives who weren’t recently pressuring the White House to do more for Bergdahlthey’re of the incoherent view that the agreed upon terms of his release weren’t worth it, and that those terms should have been proportional to an evaluation of his conduct that can only be conducted with any legitimacy now that the deal is done.

Amen. But Philip Klein decries what he sees as liberal hypocrisy:

Liberals spent a good part of the last decade excoriating anybody who suggested that they wanted Saddam Hussein in power or were pro-terrorist because they opposed the Iraq War, but this is exactly the same form of argument they’re employing by suggesting anybody questioning the deal wants to leave soldiers behind. In other words, they’re focusing on one result of the policy, without considering any of the costs. Unless liberals are going to argue that securing Bergdahl’s release was worth any price — even, say, giving nuclear weapons to the Taliban – by their own logic, they favor leaving soldiers behind.

I think extrapolating this kind of thing from one prisoner exchange – the only one in the longest war the US has ever fought – is more than a little disproportionate. There was also apparently some controversy within the administration over whether to release these particular detainees from Gitmo:

The question of the release of the five Taliban leaders was a recurrent subject of debate in the administration and was a key element of the behind the scenes effort by the State Department and the White House to negotiate a peace deal with the Taliban. The transfer of the five was discussed as a possible confidence-building measure to pave the way for a deal. The debates over their release were contentious, officials familiar with them say.

Those opposing release had the benefit of secret and top secret intelligence showing that the five men were a continuing threat, officials familiar with the debate tell TIME. But in the push from the White House and the State Department to clear the men, opponents to release found themselves under constant pressure to prove that the five were dangerous. “It was a heavy burden to show they were bad,” says the second source familiar with the debate.

And the fact that Bergdahl was held by the Haqqani network in particular, not just “the Taliban” as the White House says, complicates the question of whether we “negotiated with terrorists”:

In September 2012 Secretary of State Hillary Clinton approved an official U.S. State Department designation of the Haqqani network as a foreign terrorist organization. The Afghan Taliban has not been so designated. The Haqqanis are unpalatable for another reason: they keep close ties to al-Qaeda.

Given that Bergdahl was held by an officially designated terrorist group, doesn’t it follow that Obama negotiates with terrorists? Not exactly. The U.S. bargained the release via the Persian Gulf nation of Qatar, which served as an intermediary. “We appreciate the support of the government of Qatar in facilitating the return of our soldier,” White House national security council spokeswoman Caitlin Hayden tells TIME. “We did not negotiate with the Haqqanis.” In short: we dealt with the Qataris, and the Qataris dealt with the Haqqanis. Did we therefore deal with the Haqqanis? Technically, no. In spirit, yes.

Zooming out, Simon Engler says the release also had strategic value:

Saturday’s prisoner exchange with the Taliban was not meant simply to bring Bergdahl home.  The swap was initially developed in 2011 as a confidence-building measure aimed at encouraging broader talks with the Taliban. Since Bergdahl’s release, administration officials and the Taliban have poured cold water on the notion that the swap could signal an opening toward more substantive peace talks between the two.

But Bergdahl’s release at least demonstrates that small-scale negotiations are feasible — and that the Taliban’s representatives in Qatar are legitimately connected to its forces in Afghanistan.

However, Niel Joeck argues that if it was a strategic move, it was a bad one:

President Obama certainly must have weighed these costs [that trading Gitmo detainees for a prisoner would make the capture of Americans more likely] against likely benefits, but here the story gets both confusing and more problematic. His National Security Advisor, Susan Rice, said that the exchange serves U.S. national security interests, presumably meaning that it is part of a broader strategic approach. If it is, however, why did Hagel say it was done to save Bergdahl’s life? The administration’s message is mixed — did the deal have to be struck quickly to save his life? If so, how does that serve a broader strategy?

These misaligned statements therefore raise the question of the strategy in Afghanistan. The release was not discussed with President Hamid Karzai, but were either of the two candidates to succeed him consulted? If not, are we again sowing seeds of mistrust when we develop strategy without regard to the effect on allies?

David Axe, meanwhile, is outraged that Bergdahl is being blamed for the deaths of soldiers who tried to rescue him:

Two hundred and ninety-five coalition troops died in Afghanistan in 2008. Five hundred and twenty-one died in 2009. More than 700 perished in 2010. Bergdahl’s regiment was going to fight—and suffer casualties—regardless of whether planners tailored the unit’s operations to help gather intelligence on Bergdahl’s whereabouts. In fact, if you’re willing to blame Bergdahl for soldiers’ deaths, then you also have to attribute to him all the lives he “saved.” The slight shift in operations that reportedly occurred because of Bergdahl almost certainly kept U.S. units off of some remote roads and out of certain enemy-controlled villages. Attacks did not take place that might have otherwise.

And Republicans can hardly claim they’re not playing politics at all here, seeing as GOP strategists are helping Bergdahl’s critics get press. Previous Dish on the POW controversy here and here.

(Top photo: A sign announcing the release of Sgt. Bowe Bergdahl sits outside the Power House restaurant on Main Street June 1, 2014 in Hailey, Idaho. By Scott Olson/Getty Images. Bottom photo: Jani Bergdahl, the mother of Bowe, walks through the Colonnade with President Barack Obama to speak in the Rose Garden of the White House on May 31, 2014. By Mandel Ngan/Getty Images)