Wednesday, 04 June 2014 18:13

Bergdahl, Gitmo Detainees, and the Rule of Law

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With the narrative of Bowe Bergdahl, the American POW from Idaho held by the Taliban for five years, changing by the hour, it is perhaps premature to pass judgment on the actions of the recently freed soldier or on the Obama administration’s actions to secure his release. The exchange of five Afghani prisoners held at Guantanamo for Bergdahl has raised an unprecedented political firestorm, with congressional Republicans (and a few Democrats, such as Senator Dianne Feinstein) accusing the Obama administration of acting illegally by failing to notify Congress of their intent to release the Afghani POWs at Gitmo, and some of Bergdahl’s former platoon comrades accusing him of desertion and even treason. Given the acrimony and the seriousness of some of the accusations, Bergdahl’s actions and those of the Obama administration will surely be scrutinized minutely in the weeks and months ahead.

In the meantime, here are a few of the facts and relevant issues as we currently understand them. PFC Bowe Bergdahl, 28, is a man of varied interests, having studied martial arts, fencing, and ballet dancing. Homeschooled and raised as an Orthodox Presbyterian, Bergdahl appears to have grown uncomfortable with his faith; he practiced Buddhism at a monastery in 2007 and 2008. After graduating from infantry school in the fall of 2008, Bergdahl was deployed to Afghanistan, at an outpost in the eastern part of the country not far from Pakistan called Mest-Malak. Bergdahl displayed a strong interest in the local language and culture and began learning Pashto, the language of many Taliban. He also allegedly began expressing skepticism to friends over the validity of the military mission.

Bergdahl disappeared from his base on the night of June 30, 2009, leaving behind his military gear. In the ensuing effort to find him, as many as six American soldiers lost their lives to Taliban attacks. A few days before his disappearance, he is alleged, in an article in Rolling Stone magazine in June 2012, to have sent an e-mail to his parents sharply criticizing the U.S. military and its role in Afghanistan. “I am ashamed to be an American,” Bergdahl wrote, adding that “the future is too good to waste on lies.” This e-mail has not been substantiated by other media sources, and, while professing disgust with the military, does not indicate any plans to desert, defect, or betray the United States.

On the other hand, as CNN announced on June 3, the Pentagon, after investigating Bergdahl’s disappearance, did conclude in 2010 that the soldier left the base without authorization, though the circumstances of his subsequent capture by the Taliban are still unclear. It therefore appears that there are grounds for accusing Bergdahl of going AWOL, although claims of treason appear premature, to say the least.

On May 31, 2014, Bergdahl was released by the Taliban to American Special Forces in return for the release of five Taliban prisoners who had been held at Guantanamo for more than a decade. Bergdahl was handed over to Special Forces in Afghanistan’s Khost Province and spirited away by helicopter; the “Taliban Five” were turned over to government custody in Qatar, where they are required to remain for one year. The five men released in exchange for Bergdahl are Mohammad Fazl, the Taliban Army chief of staff; Khairullah Khairkhwa, the Taliban governor of Herat province and former interior minister; Abdul Haq Wasiq, the Taliban deputy minister of intelligence; Norullah Noori, a senior Taliban military commander; and Mohammad Nabi Omari, another senior Taliban official. All rhetoric aside about these men being the “worst of the worst,” it is far from clear what crimes any of them may have committed against the United States; none of them has been officially accused of other than belonging to the Taliban, nor has any been tried for any of their alleged crimes.

This, of course, is the situation with all of those detained at Gitmo — a facility of such dubious legality that it is maintained, not on American soil, but on the soil of one of the world’s last Stalinist dictatorships. It is more than likely that the “Taliban Five” are not nice men, but running an odious Islamist theocracy on the other side of the planet is a far cry from committing actionable crimes against the United States, its citizens, and its laws. Even accused Nazi war criminals had their day in court. German and Japanese POWs were repatriated at the war’s end, as has been the practice of civilized nations for thousands of years. On the other hand, the ongoing undeclared war in Afghanistan — which has been cast as part of a larger, ongoing, open-ended, and undeclared “War on Terror” — is not only constitutionally illegitimate (any justness of its cause notwithstanding) for being undeclared, but there is also little prospect that it will ever end (and less still that there will ever be a peace treaty of any kind). This means that Gitmo detainees will be in legal limbo the rest of their lives, to be tortured and interrogated at the whim of the U.S. government, while the crusade against a never-ending succession of terrorist bugbears around the world goes on and on.

In fact, a large number of Gitmo detainees have been shown to be innocent, yet still were made to languish for years in America’s military gulag.

It is possible that Bergdahl, during his time serving in Afghanistan, became aware of the many vexing moral contradictions and outright illegalities in America’s War on Terror. He was certainly not the first U.S. soldier to experience strong misgivings about our actions in Iraq and Afghanistan. Bergdahl may indeed have deserted his post and his comrades, and possibly gone over willingly to the Taliban — contemptible acts regardless of the morality or legality of the conflict. But none of this has yet been proven. For now, we know little of what his motivations may have been, or of the choices he made prior to his disappearance.

As for the actions of the Obama administration, their legality is still murky. Obama himself signed legislation requiring a 30-day presidential notice to Congress before the release of any Gitmo prisoners, notice that was not given for the Bergdahl exchange. But the Obama administration is claiming that the legislation allowed for exceptions to that provision if the situation were urgent — and in this case, Bergdahl’s alleged failing health required exceptional actions to be taken to guarantee his safe return. Given the blatant illegality of the entire Guantanamo prison camp and of the way in which the War on Terror has been conducted, truckling over the legality of Obama’s actions is very selective solicitude for the rule of law.

Screen capture from video of Sgt. Bowe Bergdahl standing with a Taliban fighter in Afghanistan: AP Images

6 comments

  • Comment Link Heidi Preston Friday, 06 June 2014 00:46 posted by Heidi Preston

    Interesting considering that May 30, 2014 Turkey cut off water supply to Syria which supplies water to Syria and Iraq. "The Islamic State in Iraq and Syria (ISIS) controlling the region the Dam is located in did not suspend the water output. Employees of the General Institution of the Euphrates Dam are running the lake under the supervision of Al-Qaeda linked ISIS, but they don't have the Authority to take sensuous decisions, such as reducing the water output"...It would take a month to replace the water level to previous levels and it only takes one more meter to completely be cut off.
    http://english.al-akhbar.com/node/19970

    1.May 23.2014- USS Vella Gulf entered the Black Sea( to support NATO, training missions and Maritime security)..or block Russia from getting to Syria
    2.May 30, Turkey cuts off water supply down to one meter of critical water supply to Syria and Iraq. (sending a message...you die if you don't have water)
    3.June 2,2014-end of Russia's gas contract and supply to Ukraine if they don't pay bill.
    4.June 3,2014- Syria elections

    By: Suhaib Anjarini

    Published Friday, May 30, 2014

    "The Turkish government recently cut off the flow of the Euphrates River, threatening primarily Syria but also Iraq with a major water crisis. Al-Akhbar found out that the water level in Lake Assad has dropped by about six meters, leaving millions of Syrians without drinking water.

    Two weeks ago, the Turkish government once again intervened in the Syrian crisis. This time was different from anything it had attempted before and the repercussions of which may bring unprecedented catastrophes onto both Iraq and Syria.

    Violating international norms, the Turkish government recently cut off the water supply of the Euphrates River completely. In fact, Ankara began to gradually reduce pumping Euphrates water about a month and half ago, then cut if off completely two weeks ago, according to information received by AL-Akhbar."

  • Comment Link Nora Wednesday, 04 June 2014 23:43 posted by Nora

    While we are no longer a nation of Laws, the administration broke a big one. It is unlawful to negotiate with terrorists, and that's an impeachable offense.

  • Comment Link Gene Johnson Wednesday, 04 June 2014 23:37 posted by Gene Johnson

    It is time to bring back HUAC (House Un-American Activities Committee).

  • Comment Link Old Mullet Wednesday, 04 June 2014 21:48 posted by Old Mullet

    Few if any in the military (world wide) who hated to be there would go AWOL in a direction that is toward the enemy without a reason. In today's American military there are ways to exit without such an action. There are always hard times in any stressful job. The military men and women know what their jobs are and can be. However, with this "front page" news our "leader" has, once again pulled a major slight-of-hand trick to sidetrack Americans from the ongoing list of foobars aimed at accomplishing the Dreams Of His Father (i.e. making the U.S. a third world country). Our nation has laws and they require all citizens to work within them. If we feel the laws are wrong, we are to work (legally) to have them changed. For the figurehead of our nation to continually shortcut ethical practices is setting a poor example for us all. If the Congress and the Supreme Court are of no effect, then, we are no longer a Democratic Republic, we are a swirling mass of slavery going down the tube toward Socialism.

  • Comment Link Michael Dalene Wednesday, 04 June 2014 21:27 posted by Michael Dalene

    Gitmo is as illegal as the United States itself--- but what of our nation's prisons, overloaded with political prisoners that haven't committed any crimes other than exercising their God-given unalienable Rights as GUARANTEED by the US and State Constitutions?

    American's are being held in prisons for political crimes ranging from DUI to failure to pay child support, and drug possession and 'illegal' gun possession.

    American's KNOW that DUI is NOT a crime since it doesn't have the necessary factors of a criminal act; that of injury to a person or to property... Persons that drive while suffering a "temper tantrum" or other emotional insanity or are as dangerous, and perhaps more so, as any under the Influence. Perhaps these people should also be Imprisoned and suffer the "cruel and unusual" persecution inflicted upon drinking drivers?

    Drug possession, as with gun possession, is a Legal, Constitutional right. The ONLY crime involved is that of denying them the Free exercise of that right and in fact; the use of government (military) force in the denial of the free exercise of a God-given unalienable right as Guaranteed by the Constitutions of this nation is an Act of War and Treason against the individual...

  • Comment Link MemphisMickey Wednesday, 04 June 2014 18:24 posted by MemphisMickey

    Close Gitmo and give them their day in Court.

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