It just might have had something to do with the fact that Jenkins publicly and privately (to the Japanese embassy, at least) SAID he wasn’t a prisoner of war. If you remember Bergdahl making a similar statement, point it out, because I sure don’t.
While we didn’t get Jenkins back and interview him, other people did interview him. In the absence of evidence he was actually being held captive by the other side, he’s a lower priority than men who were seen in prison camps by people who did make it back.
There are ‘conflicting accounts’ now about anything somewhere in the huge media/internet complex.
But the main and most telling thing I’ve heard about Bergdahl are a whole series of witnesses, guys from his own platoon, who have appeared in the open, on the record, by name, saying he deserted. I don’t see any solid reason to doubt that.
Note, that’s not the same as a legal finding of desertion, but everything in life doesn’t revolve around legal findings. If as an everyday practical fact Bergdahl deserted his post, that matters, and it seems to be true. Whether there’s some mitigating circumstance wrt mental state, or a future court finds that being imprisoned by the Taliban for years was ‘suffering enough’, that’s a court decision to be made. But it doesn’t mean Bergdahl’s platoon mates were lying when they all say he picked up and left: deserted.
In the last couple of days there have been references to unnamed sources characterizing classified report(s) the Army compiled about what Bergdahl did in captivity, and those are indeed less solid and contradictory (eg. said he played soccer and shot target practice with the Taliban but also tried to escape more than once, though actually all those things could be true depending Bergdahl’s mental state over a long period of time in captivity). But I don’t think that’s actually as relevant. The sad truth is that a lot of prisoners captured in honorable circumstances later cooperate with their captors to one degree or another, under one degree of duress or another.
But the central complaint about Bergdahl was from platoon mates who heard the ‘served with honor and distinction’ comment and were outraged by it, not only because he deserted but from their POV he risked and cost lives in subsequent operations at least in part aimed at trying to locate him. They then spoke out, on the record. I don’t see that as a ‘smear’ unless you can produce other witnesses in as close relation to Bergdahl with contrary accounts. And I know a political operation who I’m sure has been looking for such witnesses. We’d have heard it by now if they’d found any.
And the use of the term ‘swift boat’ is not helpful because it’s unclear, ie mainly unclear that the basic story told by crew mates critical of Kerry’s service in Vietnam wasn’t true. It was kind of ‘clever’ (ironic quotations) to try to establish the term ‘swift boat’ as if referring to lies, the problem being, it’s not clear those were lies about Kerry. But in any case no argument about Kerry is going to prove anything about Bergdahl either way.
Whose to say Berghdal was not liked by his squad mates and CO, then when he really was abducted and to cover up their lax security they planted a note claiming he walked off base.
This is the same Army that kept secret the details about Pat Tillman’s death until after they could squeeze the maximum favourable coverage out if it before admitting he probably was shot by his own platoon.
I agree. The Jenkins and Bergdahl situations are pretty close actually, understanding that no situation of this kind involving an individual is going to be same, because no two individuals are exactly the same.
The more plausible argument wrt Jenkins for those supporting the Bergdahl swap would be that the US govt should have made more of an issue of getting back Jenkins, not to try to say it’s completely different.
It was basically the same. Both guys on all evidence chose to desert and ended up in enemy hands. And that decision to desert as the reason for falling into enemy hands is the key distinction v prisoners taken in the line of duty.
Whether they subsequently decided they liked their captors or not is secondary. Back to the ‘conflicting accounts’ leaked from classified intel about Bergdahl’s activities with the Taliban, I expect the (real non-spun) truth will turn out to be actually conflicting facts about Bergdahl’s attitude toward his captors over time. Same with Jenkins, same for that matter with Oswald when he ‘defected’ to the USSR but later was allowed to leave after he became disillusioned.
Why were any of these five terrorists released? They are terrorists and murderers. The world would be a safer place if these specific terrorists were still in GITMO.
Mohammad Fazl - Fazl served as Chief of Staff of the Taliban Army. He was associated with terrorist groups opposing US and Coalition forces. According to documents from the Joint Task Force Guantánamo, Fazl is “wanted by the UN for possible War crimes including the murder of thousands of Shiites”. The document stated Fazl has become a recruiting symbol for the Taliban.
Khairullah Khairkhwa - Khairkhwa was the interior minister under the Taliban. He helped found the Taliban in 1994. He was directly associated with Osama Bin Laden and Taliban Supreme Commander Mullah Muhammad Omar. Likely involved with militant training, he was also “a narcotics trafficker and probably used his position and influences to become one of the major opium drug lords in Western Afghanistan”, and probably used profits from drugs to promote Taliban interests.
Norullah Noori - Nori served as the governor of Balkh and Laghman provinces in the Taliban regime. He was a senior Taliban military commander in Mazar-e-Sharif. Nori is “wanted by the United Nations for possible war crimes including the murder of thousands of Shiite Muslims” along with Fazl. According to Barnett Rubin, they were “responsible for ethno-sectarian massacres in northern Afghanistan” along with their enemies.
Mohammed Nabi Omari - Nabi was the Taliban’s chief of communications. Nabi had “operational ties to Anti-Coalition Militia (ACM) groups including al-Qaida, the Taliban, the Haqqani Network, and the Hezb-e-Islami Gulbuddin”. He also “maintained weapons caches and facilitated the smuggling of fighters and weapons”.
Abdul Haq Wasiq - Wasiq was deputy chief of the Taliban regime’s intelligence service. Wasiq had direct access to Taliban and Hezb-e-Islarni Gulbuddin leaders, and was “central to the Taliban’s efforts to form alliances with other Islamic fundamentalist groups to fight alongside the Taliban against US and Coalition forces after the 11 September 2001 attacks”.
Yeah, a bunch of his platoon mates came on TV 5 years later, when none of them are even in the Army anymore (none of the enlisted guys I saw on TV are) to all make up the same story about Bergdahl deserting, because they want to head off a story told by Bergdahl that he was actually abducted and it was their fault?
Who’s to say anything you (or I) make up isn’t true? But Occam’s Razor would seem to strongly point to the story told by his former platoon mates to be true. That’s a lot simpler than it being an ‘Army cover up’ that somehow was able to get a bunch of ex Army guys to all tell the same lie about Bergdahl on the record, showing their faces on national TV.
If it was just some Army official report from the time saying this or that, I think it would be more reasonable to doubt it. And in that vein, I highly doubt the value of Chuck Hagel’s statement that ‘the database of personnel casualties’ doesn’t show any as being caused by searching for Bergdahl. I can very much believe nobody wanted to put that in a database at the time. But I think that means exactly zero in contradicting multiple personal accounts that KIA’s occurred on missions mainly searching for Bergdahl.
You would have a point if military investigations were conducted via televised interviews given by third parties. Personally I’d prefer to wait until Berghdal gets brought before a tribunal and until then it’s innocent until proven otherwise.
He should have vetoed it if he thought it was unconstitutional.
Doesn’t Aaron v. Cooper put that decision in the hands of the judiciary? Can the President only do this prior to a SCOTUS decision or after? Could a hypothetical future President refuse to enforce all federal gun laws on the grounds he believes them to be unconstitutional? Could a President stop Social Security payments on his belief that the Act is unconstitutional?
Or is it limited to yet to be decided by the Court questions? Is everything there free game to be ignored by the President?
As far as I can figure out, the laws says Congress won’t pay for the transfer of Gitmo individuals to the U.S., or anywhere else, unless Congress was notified at least 30 days in advance. I guess that means that the Sec of Defense has to pay for the transfer of the GITMO terrorists of his own pocket??? I’m not seeing any fines or jail time for violating this section of the law.
(I hope the length of the following cut/paste of the relative sections doesn’t violate any rules. It’s a government document and there aren’t any copyright issues. Any interested readers can still read Sec 1027, 1028, and 1029 in the pdf file)
PDF file -
*National Defense Authorization Act For Fiscal Year 2013
Conference Report
to accompany
H.R. 4310
SEC. 1027. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.
None of the funds authorized to be appropriated by this Act for fiscal year 2013 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—
(1) is not a United States citizen or a member of the Armed Forces of the United States; and
(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.
SEC. 1028. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES. (a) CERTIFICATION REQUIRED PRIOR TO TRANSFER.—
(1) IN GENERAL.—Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2013 to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.
(2) EXCEPTION.—Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance).
(b) CERTIFICATION.—A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that—
(1) the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred-
(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
(B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility;
(C) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual;
(D) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;
(E) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and
(F) has agreed to share with the United States any information that—
(i) is related to the individual or any associates of the individual; and
(ii) could affect the security of the United States, its citizens, or its allies; and (2) includes an assessment, in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or entity in relation to the Secretary’s certifications.
(c) PROHIBITION IN CASES OF PRIOR CONFIRMED RECIDIVISM.—
(1) PROHIBITION.—Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise made available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity if there is a confirmed case of any individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to such foreign country or entity and sub- sequently engaged in any terrorist activity.
(2) EXCEPTION.—Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance). (d) NATIONAL SECURITY WAIVER.—
(1) IN GENERAL.—The Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in subparagraph (D) or (E) of subsection (b)(1) or the prohibition in subsection (c), if the Secretary certifies the rest of the criteria required by subsection (b) for transfers prohibited by (c) and, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that—
(A) alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;
(B) in the case of a waiver of subparagraph (D) or (E) of subsection (b)(1), it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated, but the actions to be taken under subparagraph (A) will substantially mitigate such risks with regard to the individual to be transferred;
(C) in the case of a waiver of subsection (c), the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken under subparagraph (A) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and
(D) the transfer is in the national security interests of the United States.
(2) REPORTS.—Whenever the Secretary makes a determination under paragraph (1), the Secretary shall submit to the appropriate committees of Congress, not later than 30 days before the transfer of the individual concerned, the following:
(A) A copy of the determination and the waiver concerned.
(B) A statement of the basis for the determination, including—
(i) an explanation why the transfer is in the national security interests of the United States;
(ii) in the case of a waiver of paragraph (D) or (E) of subsection (b)(1), an explanation why it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated; and
(iii) a classified summary of—
(I) the individual’s record of cooperation while in the custody of or under the effective control of the Department of Defense; and
(II) the agreements and mechanisms in place to provide for continuing cooperation.
(C) A summary of the alternative actions to be taken to address the underlying purpose of, and to mitigate the risks addressed in, the paragraph or subsection to be waived. (D) The assessment required by subsection (b)(2).
(e) RECORD OF COOPERATION.—In assessing the risk that an individual detained at Guantanamo will engage in terrorist activity or other actions that could affect the security of the United States if released for the purpose of making a certification under subsection (b) or a waiver under subsection (d), the Secretary of Defense may give favorable consideration to any such individual—
(1) who has substantially cooperated with United States intelligence and law enforcement authorities, pursuant to a pretrial agreement, while in the custody of or under the effective control of the Department of Defense; and
(2) for whom agreements and effective mechanisms are in place, to the extent relevant and necessary, to provide for continued cooperation with United States intelligence and law enforcement authorities.
(f) DEFINITIONS.—In this section:
(1) The term ‘‘appropriate committees of Congress’’ means— (A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and
(B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives. (2) The term ‘‘individual detained at Guantanamo’’ means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—
(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and
(B) is—
(i) in the custody or under the control of the Department of Defense; or
(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba. (3) The term ‘‘foreign terrorist organization’’ means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).
SEC. 1029. RIGHTS UNAFFECTED.
Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.*
*Cooper v. Aaron * (1958) concerns the Supremacy Clause and the relationship between the states and the feds; it doesn’t affect the interplay between the legislative and executive branches. There are no SCOTUS decisions of which I’m aware that directly address whether the president has the duty to enforce unconstitutional laws.
However, I think that the court would agree that the president’s oath to uphold the Constitution gives him the right and even obligation to refuse to enforce laws that he deems unconstitutional, with the proviso that the courts can tell him he is wrong and must enforce whichever particular law it is.
(As a related example, no one would have expected Alabama authorities to enforce that state’s ban on interracial marriage after Loving v. Virginia, although the anti-miscegenation law remained on the books until 2000.)
After SCOTUS rules, the president is bound by the Court’s decision.
The question of whether the president should have vetoed the law is an interesting question. For example, when Nixon was presented with an extension of the Voting Rights Act in 1970, he objected to one particular clause lowering the voting age in state elections, arguing that was unconstitutional, but he signed the law anyway on the grounds that the whole law was sufficiently important to warrant signing even with that one provision (which the SCOTUS subsequently found was indeed unconstitutional). Another possible reason would be to preserve justiciability–a vetoed law that has not been overridden cannot be challenged in court, so there will never be an opportunity to find out its constitutionality. Also, the president may wish to attempt to preserve relations with Congress by saying he will try to follow the law, except when his competing obligations and responsibilities preclude him from doing so.
I don’t necessarily disagree with you. Jefferson, in fact, believed in this very thing instead of judicial review. It has some practical problems, though because it weakens the role of Congress in the whole process.
You are right that Cooper dealt with the interplay between the feds and the state, but it stood for the proposition that the Court states what the “law is.” There is no case on point, I agree.
However, such actions give the President, in my opinion, too much power. As an analogy, lets say that Congress uses its plenary power over the District of Columbia and outlaws SSM (note: not trying to start SSM Wars XXIV, just an example of an issue where the constitutionality is fairly in doubt). If the President feels that the law is unconstitutional, or simply opposes it, he may veto the law and require 2/3 of each house to override his veto.
With this “extra” power we are discussing of simply ignoring a law he perceives to be unconstitutional, the President may sign the bill and not enforce it, or have his veto overridden and still not enforce the law. If he refuses to enforce it, then (especially with this issue) it may be that nobody has standing to challenge his actions in Court for a final determination of its constitutionality. You have a situation where one single person can thwart the democratic process and prevent a law which may ultimately be constitutional from taking effect.
A better solution is simply enforcing the law and letting the Court decide. If an aggrieved party will suffer irreparable injury from the law, they can ask for an injunction (as is routinely done). At least in that scenario there is oversight and the decision on constitutionality of a law passed by Congress is placed in the judiciary.
I don’t look forward to future President Michelle Bachman withholding federal education funds from schools that don’t allow moments of silence before class or President Charles Schumer withholding federal highway funds from states that allow shall-issue concealed carry.
ETA: Does this only apply to the President? May a soldier become a constitutional scholar and choose which laws/orders to obey? Can a Congressman? A cabinet member? An individual?
I’m actually shocked that after having gone AWOL twice before in similar circumstances Bergdahl hadn’t been relieved of duty and examined by medical professionals.
Certainly the report unearthed is a pretty damning indictment of the US military’s treatment of soldiers who rather clearly have mental health issues.
I missed the evidence he did this multiple times. I agree they should have relieved him of duty at some point but where is the indication he’s a nutter? He’s entitled to an opinion it just can’t differ from the military. It doesn’t make him crazy.
Anyway, Bill Maher made a good observation the other night when he pointed out that the Taliban aren’t terrorists- they’re a guerrilla army that seeks to seize and hold territory. They may like what Al Qaeda does, but terrorism really isn’t what they do. So the whole idea that Obama ‘negotiated with terrorists’ is just false.
IMHO, everybody involved with the Taliban ended up at war with the US after 9/11, whether or not they had any connection with or interest in it. We went in there and overthrew them, driving them out of a lot of the territory they’d spent years capturing. We’ll always have drones and surveillance- I’m willing to see if they have learned their lesson and are content to not be at war with us.
I don’t care about these 5 guys at all. The war is going to be over and they are basically POWs. Getting our guy back is more than worth it. All the talk of ‘desertion’ is nonsense- a judge would have to determine that after he’s back. And these 5 guys have the ‘privilege’ of returning to Afghanistan after 12 years in Gitmo. Their country was in bad shape before the war- returning to the defeated side doesn’t sound too glorious to me. They still lost.
I think the GOP is desperate to cast Obama in a negative light at all costs, and they sink to ever-new lows. A reasonable opposition party would perform better service to the public, but ‘service to the public’ isn’t the point with these guys, is it? Nobody is pointing out the unwanted Federal regulations on the free trade of POWs, are they? On Monday when the issue was carbon emissions, you’d have thought the free market was God Himself. Where’s the consistency?