Bergdahl raises Constitutional questions
The return of Army Sgt. Bowe Bergdahl, a Taliban prisoner for five years for five Taliban Guantanamo detainees, has raised issues about constitutional powers, the war in Afghanistan, and even Bergdahl's own actions.
Ted Cruz, R-Texas, said, "Barack Obama broke a decades-old policy of "not negotiating with terrorists." but the United States has a long history of negotiating prisoner trades in times of war.
Does the U.S. have a history of negotiating with terrorists?
Mitchell Reiss worked in the State Department under President Bush and served as national security adviser to Republican presidential candidate Mitt Romney. Reiss wrote that America actually has a detailed history of negotiating with terrorists and rogue regimes that support terrorist activity. Even the Founding Fathers struck agreements with terrorists of the time: pirates. In perhaps the most famous swap, President Ronald Reagan agreed to send missiles to Iran for several captured American,in what became known as the Iran-Contra scandal.
Sen. John McCain said,(these) "are the hardest of the hard-core. These are the highest high-risk people." Experts told PolitiFact that each of the five detainees represented risks to U.S. national security to one degree or another. Experts also said McCain is generally correct that the five released detainees are significant figures who could put American interests at risk, some added that his language might have been a bit hyperbolic.
As a candidate, Obama said "While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability," pledging "I will not use signing statements to nullify or undermine congressional instructions as enacted into law."
The 2014 National Defense Act put statutory restrictions on the transfer of Guantanamo detainees, notably a provision that requires the administration to inform appropriate members of Congress at least 30 days before the prisoners are moved. In his signing statement, Obama said plainly that he would disregard the statutory restrictions on the transfer of Guantanamo detainees in certain circumstances.
Obama cited a "constitutional conflict" between the congressional and executive branches on carrying out foreign policy. This could be used to argue that his signing statement was in line with his promise. Still, his decision not to abide by the 30-day requirement amounts to a quite literal nullification of congressional instructions designed for accountability. Kermit Roosevelt, a University of Pennsylvania law professor, said that while Obama's statement isn't as aggressive as some of Bush's, it asserts a "similar power to disregard federal law under certain circumstances." And Roosevelt said that is inconsistent with Obama's pledge.
When Obama issued his signing statement warning Congress that he reserved the right to disregard a provision of a law passed through Congress, he did something he said he would not do. Politifact rates this a Promise Broken. The Army is preparing "a full, high-level inquiry" into the circumstances of Bergdahl's disappearance and his personal conduct. The inquiry would determine whether a formal investigation into possible criminal charges are warranted. Gen. Martin E. Dempsey, the chairman of the Joint Chiefs of Staff said "As for the circumstances of his capture, when he is able to provide them, we'll learn the facts.
Like any American, he is innocent until proven guilty."