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Posted by on Jun 5, 2014 in International, Law, Military, Politics, Terrorism, War | 29 comments

(Predictable Update: ‘Impeach Him’) The Bergdahl Controversy: Latest Developments


Update II:

The New York Times reports:

A classified military report detailing the Army’s investigation into the disappearance of Sgt. Bowe Bergdahl in June 2009 says that he had wandered away from assigned areas before — both at a training range in California and at his remote outpost in Afghanistan — and then returned, according to people briefed on it.

The roughly 35-page report, completed two months after Sergeant Bergdahl left his unit, concludes that he most likely walked away of his own free will from his outpost in the darkness of night, and it criticized lax security practices and poor discipline within his unit. But it stops short of concluding that there is solid evidence that Sergeant Bergdahl intended to permanently desert.

(emphasis mine)

Read more here


Predictable Update I: “Impeach Him!”

And now, the “Impeach Him” crowd smells blood in the water again and goes on a feeding frenzy even before the facts are out, even before the chum hits the water…

Just look at these titles of “get him” pieces at, led by — you guessed it — Allen West’s:

Allen West / Allen B. West: The case for impeachment of Barack Hussein Obama

TPNN: EXCLUSIVE: Allen West on Obama’s Terrorist Swap: It’s Time for Articles of IMPEACHMENT!

Randy Krebiehl / Daily Oklahoman: Senate candidate Randy Brogdon urges Obama impeachment

And then there are these:

Justin Baragona / PoliticusUSA: Republicans Shouting Impeachment Have Reached Critical State Of Obama Derangement Syndrome

Jonathan Capehart / Washington Post: Bergdahl and the GOP’s predictable impeachable offense

Joan Walsh / Salon: The right’s unhinged Bergdahl hypocrisy: The ultimate way to savage Obama

Tom Kludt / Talking Points Memo: Conservatives Go From Zero To Impeachment In Record Time On Bergdahl

Original Post:

Today’s edition of FP’s (Foreign Policy) Situation Report has a very good summary of the latest developments surrounding the release of Sgt. Bowe Bergdahl.

For the full reports, please click here.

Most of us have seen the Taliban-provided video of Bergdahl’s release in eastern Afghanistan. If you have not, you can watch it here

On the authenticity of the video, Pentagon Press Secretary Rear Adm. John Kirby says, “”We are aware of the video allegedly released by the Taliban showing the transfer into U.S. hands of Sgt. Bowe Bergdahl. We have no reason to doubt the video’s authenticity, but we are reviewing it. Regardless, we know the transfer was peaceful and successful, and our focus remains on getting Sgt. Bergdahl the care he needs.”

The WSJ’s Adam Entous, Dion Nissenbaum and Michael Crittenden report: “Two secret videos showing rapid deterioration in Sgt. Bowe Bergdahl’s health persuaded reluctant military and intelligence leaders to back the prisoner swap that has stoked a backlash, officials said Tuesday, as the Army launched a new probe into why the soldier disappeared from base shortly before his capture by the Taliban in 2009.” Read more here.

FP reports, “This evening, the full Senate is invited to a briefing about the controversial Bergdahl release and to get their many questions answered. We’ve learned that all Senators are invited to a 5:30pm briefing at the Capitol Visitors Center for a rare, closed-door briefing for the full Senate.”

Expected to brief are, the Pentagon’s No. 2, Bob Work, the deputy Secretary of Defense; Jim Dobbins, State’s Special Representative for Afghanistan and Pakistan, or SRAP; Vice Chairman of the Joint Chiefs of Staff Adm. Sandy Winnefeld, and Robert Cardillo, deputy director of National Intelligence, or DNI, according to FP.

As to the issue of whether President Obama broke the law, the FP Report quotes CS Monitor’s Peter Grier: “…The law in question was enacted as part of the 2014 National Defense Authorization Act (NDAA). When he signed that bill into law Obama included a signing statement which warned he might do what he just did. ‘The executive branch must have the flexibility … to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers,’ said the statement at the time.” But, Grier adds, “Here’s the problem: By themselves, signing statements have no legal force. It may seem odd that Congress didn’t include a little wiggle room for emergency contingencies in regards to prisoner handling, but it didn’t. Some legal analysts thus conclude that it’s pretty clear the swap was illegal under the NDAA language.

At the CS Monitor, Grier continues:

The argument doesn’t end there, however. What if the law in question is itself unconstitutional? After all, the president of the United States is also the nation’s commander in chief under the Constitution (Article II, Section 2, Clause I). That invests him with enormous military powers, particularly in regards to tactical and strategic decisions. What if Congress passed a law requiring a 30-day notice before a president could order troops to patrol? That would pretty clearly be unconstitutional. Some analysts argue that a decision to repatriate a captured soldier isn’t much different.

“The President pretty clearly exercised his constitutional powers under Article II to disregard the statute,” writes Harvard Law School professor Jack Goldsmith at the “Lawfare” national security legal blog.

And so, the controversy continues.

The FP Report also points to reports that “All those soldiers criticizing Bergdahl had some Republican messaging help,” as claimed at Buzzfeed’

In the meantime,

Former Bush administration official, John Bellinger, who served as an adviser to President George W. Bush, defended President Obama’s prisoner exchange, arguing that since “the war in Afghanistan is winding down,” the United States would be required to return prisoners held at Guantanamo Bay back to Afghanistan, according to BuzzFeedPolitics


I don’t see how these particular Taliban officials could ever have been tried in the southern district of New York. They’re certainly some Al Qaeda detainees who committed actual terrorist acts against Americans who perhaps could have been tried in a federal court because they committed federal crimes, but these particular Taliban detainees I think could never have been tried in federal court.

Asked about reports that Bergdahl deserted his unit, Bellinger added that the former hostage “will have to face justice, military justice.” “We don’t leave soldiers on the battlefield under any circumstance unless they have actually joined the enemy army,” he said. “He was a young 20-year-old. Young 20-year-olds make stupid decisions. I don’t think we’ll say if you make a stupid decision we’ll leave you in the hands of the Taliban.”

Bellinger also stressed that the Bush administration “returned something like 500 detainees from Guantanamo.”

BuzzFeed adds “Statistics from the Office of the Director of National Intelligence show that only 6 percent (5 in total) of Guantanamo detainees released during the Obama administration have potentially engaged in militant activities. That compares with a rate of nearly 30 percent under the Bush administration.”