Did Obama Violate The Law With The Bergdahl Release? It Sure Seems Like It
Good intentions aren't an excuse for failure to follow the law.
In addition to the questions regarding the circumstances that led up to the Taliban taking Sgt. Bowe Bergdahl into custody, another controversy that has arisen in the wake of Bergdahl’s release has been the issue of whether or not the Obama Administration complied with the law in making the deal. Specifically at issue is a provision in the most recent defense spending bill that requires the President to give Congress notice of any deal that would include the release of prisoners being held in the detention facility at Guantanamo Bay. As I noted on Saturday evening, this was one of the first complaints that members of Congress made when the deal was made public, and while I initially tended to dismiss the seriousness of those charges, further examination seems to indicate that the legal issues are, at the very least, cloudy and that, politically, the Administration may have created a confrontation with Congress that it could have avoided.
Among the first to weigh in on the issue, not surprisingly, were those who we often see commenting on legal issues on cable news. George Washington University Law Professor Jonathan Turley, for example, doesn’t seem to think there’s very much question that the transfer violated the law:
CNN ANCHOR: Jonathan, did the White House violate federal law?
JONATHAN TURLEY: They did. I don’t think the White House is seriously arguing they’re not violating federal law. To make matters worse, this is a long series of violations of federal law this president has been accused of. I testified twice in Congress about this record of the president in suspending or ignoring federal laws. This is going to add to that pile. I don’t think there’s much debate that they’re in violation of the law. What’s fascinating, Carol, is when this law went to the president, he used a signing statement which, if you recall as a senator, he opposed, and ran against for president. But he actually used one in this circumstance and said, ‘I’m going to sign this, but I actually think that notice requirement is unconstitutional.’ He’s essentially arguing the very same principle of George Bush, that when it comes to Gitmo, he has almost absolute power, that it is his prerogative, his inherent authority to be able to make these decisions as he sees fit.
CNN’s Legal Correspondent Jeffrey Toobin agrees:
CNN legal analyst Jeffrey Toobin declared on Monday that President Barack Obama “broke the law” when his administration failed to give Congress notice of at least 30 days before releasing five ranking Taliban members from Guantanamo Bay. Toobin said that a presidential signing statement did not absolve Obama from culpability for failing to abide by the law mandating congressional notification.
“I think he clearly broke the law,” Toobin said. “The law says 30-days’ notice. He didn’t give 30-days’ notice.” Toobin added that Obama’s opinion expressed in a signing statement “is not law.”
“The law is on the books, and he didn’t follow it,” Toobin added.
(…)
“I do think that his critics have a very good point here,” Toobin asserted. He noted that Congress and the courts are unlikely to do anything about it. “But, you know, it matters whether people follow the law or not,” he concluded.
Here’s the video of Toobin’s remarks:
In a post on Sunday just hours after the release was announced, Josh Blackman, who teaches at South Texas College of Law and previously clerked for two Federal Appeals Court Judges, posted about the legal issues, and helpfully, posts the relevant section of the law:
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.
Also relevant is Section 1025 of the act, which contains the thirty day notice requirement:
a)Notice required
The Secretary of Defense shall submit to the appropriate congressional committees notice in writing of the proposed transfer of any individual detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) who is a national of a country other than the United States or Afghanistan from detention at the Detention Facility at Parwan, Afghanistan, to the custody of the Government of Afghanistan or of any other country. Such notice shall be provided not later than 10 days before such a transfer may take place.
(b)Assessments required
Prior to any transfer referred to under subsection (a), the Secretary shall ensure that an assessment is conducted as follows:
(1)In the case of the proposed transfer of such an individual by reason of the individual being released, an assessment of the threat posed by the individual and the security environment of the country to which the individual is to be transferred.
(2)In the case of the proposed transfer of such an individual to a country other than Afghanistan for the purpose of the prosecution of the individual, an assessment regarding the capacity, willingness, and historical track record of the country with respect to prosecuting similar cases, including a review of the primary evidence against the individual to be transferred and any significant admissibility issues regarding such evidence that are expected to arise in connection with the prosecution of the individual.
(3) In the case of the proposed transfer of such an individual for reintegration or rehabilitation in a country other than Afghanistan, an assessment regarding the capacity, willingness, and historical track records of the country for reintegrating or rehabilitating similar individuals.
(4) In the case of the proposed transfer of such an individual to the custody of the Government of Afghanistan for prosecution or detention, an assessment regarding the capacity, willingness, and historical track record of Afghanistan to prosecute or detain long-term such individuals.
Blackman also makes note of the New York Times report on the signing statement that the President signed when he signed the bill into law, which states in its relevant part:
Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which substitutes the Congress’s blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantanamo detainees. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation, and in certain cases may be the only legally available process for trying detainees. Removing that tool from the executive branch undermines our national security. Moreover, this provision would, under certain circumstances, violate constitutional separation of powers principles.
Presidential signing statements, of course, are something that became something of a cause celebre among opponents of the Bush Administration, who saw them as a manner in which the Bush White House was essentially inventing for itself the power to decide which laws it can choose to obey, and which it can choose to ignore. In reality, of course, signing statements were not an invention of the Bush Administration, although it is certainly the case that they did use them to a march larger degree that previous Presidencies, and in a manner that had a far more serious impact on the Separation of Powers than previous Presidents had. That’s one of the reasons why, as a candidate, President Obama spoke out strongly against the Bush Administration’s use of Signing Statements, although once he became President he discovered he had a decidedly different view of the matter.
Leaving aside that bit of political hypocrisy, though, there remains the question of whether or not the provisions of the 2013 NDAA that purport to limit the President’s authority over the disposition of Guantanamo detainees is constitutional. The Administration quite obviously argues in its Signing Statement that it is, but Timothy Sandefur puts forward a powerful rebuttal against that argument:
The allegation of unconstitutionality rests on Article II, Section 2, which declares that the President “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” This “commander in chief” provision is often said to include an extremely broad power to act unilaterally in defense of national interests. And I believe that this is often the correct conclusion. The President does have discretion to act without Congressional authorization in times of urgency—including deploying troops, conducting surveillance, and so forth.
But the Constitution limits that power in many ways—ways not accounted for by the more enthusiastic advocates of “the unitary executive.” The first is hinted at in the provision quoted above: the President is Commander in Chief of the militia when called into the actual service of the United States. Called by whom?Not by the President: he has no constitutional authority to do this on his own. Instead, Article I Section 8 givesCongress the power “[t]o provide for calling forth the Militia,” and “provide for…governing such Part of [the militia] as may be employed in the Service of the United States.” Congress makes the laws that the President executes even in military matters of this sort.
More to the point here, Article I Section 8 gives Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces”; to “raise and support Armies” (we’ll come back to that); and “[t]o define and punish…Offenses against the Law of Nations.” The President is denied power to do any of these things. Thus his power as Commander in Chief does not allow him total power over the armed forces or foreign policy. On the contrary, he is given an indefinite range of power to enforce laws and regulations that Congress may then define and limit. While the President can act on his own in many cases—particularly in cases where Congress has not spoken at all on the subject—that power is always subject to control by Congress.
The most important of all of these controls is the power over appropriations. The Constitution’s authors, familiar with the abuses of the Stuart monarchy,which had levied war without Parliament’s consent and even refused to convene Parliamentbecause it would have refused to appropriate funds to run those wars, gave Congress the power of the purse. And even that is tightly constrained—Article I section 8 denies Congress the power to make military appropriations for more than two years at a time (and the House, in charge of originating revenue bills, meets every two years, so only one Congress at a time).
“This power over the purse,” wrote Madison, “may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
Thus Congress has the power to make military appropriations, and within those appropiations to include provisions that deny the President power to use the money in specified circumstances—to fund the military, but at the same time block the use of funds for removing prisoners from Guantanamo—and impose a notice requirement on sending prisoners out of the country.
Michael Ramsey makes the argument on the side of those favoring the Administration’s argument, essentially stating that the President’s inherent authority as Commander in Chief gives him the discretion to make decisions like this notwithstanding the limits that Congress may try to put on him, but Ilya Somin is unconvinced:
Many general rules adopted by Congress under the “Government and Regulation Clause necessarily constraint the president’s “immediate management of the war effort.” For example, Congress has adopted laws regulating the abuse, torture, and other mistreatment of prisoners – even in cases where the president might think that torturing a prisoner is tactically advantageous. Congress has adopted laws restricting the use of chemical and biological weapons – again even in cases where the president might think it would be tactically advantageous to do so. The same goes for laws restricting the release of prisoners. The president might think it is tactically advantageous to make lopsided exchanges with terrorists. But Congress might disagree, and choose to ban such deals, or – as in this case – at least subject them to scrutiny by imposing a modest reporting requirement (thereby, perhaps, also making them more difficult to carry out). If Congress can restrict the types of weapons the president has at his disposal, and the kind of treatment he can subject prisoners to, they can also restrict the release of prisoners.
Perhaps Congress would be unduly infringing on the president’s powers as commander-in-chief if it tried to make individual tactical decisions on a case-by-case basis (e.g. – appointing a committee to screen individual prisoners and decide which of them should be released, based on individualized tactical considerations). But that’s not what Congress has done here.
On the surface, it appears to me that Somin, Turley, Toobin, and the others who have argued that the President violated the law here make a very good case. The requirements of Section 1025 of the Act in particular seem exceedingly clear. If a transfer is to take place, then notice must be provided in accordance with the statute. There do not appear to be any exceptions to this requirement set forth in the text of the law. There’s also no real question that the Administration didn’t comply with the law here. While it’s true that it was at first Republicans who spoke up about the White House’s failure to provide the required notice, this is an issue that has been raised across the political aisle in the three days since Bergdahl’s release. Just today, for example, Senate Intelligence Committee Chairwoman Dianne Feinstein stated that it was “very disappointing” that the Administration had failed to go forward with the required notifications before finalizing the deal that released Bergdahl. And Turley and Toobin are hardly conservatives.
On some level, I’m sure, there will be those who will wonder why this matters. After all, Bergdahl has been freed from captivity, which I think we can all agree is a good thing regardless of whether or not he is guilty of desertion for his actions in 2009. Additionally, it doesn’t appear that there is a penalty per se for violating the notice requirements of Section 1025 and the other requirements that the law imposes on the President. However, it strikes me that Toobin makes a very good point in his comments above. At some point, it matters whether or not the law is being followed regardless of whether or not good consequences follow as a result. In this particular case, the law in question is meant to be an assertion of Congress’s proper authority, which makes the President’s decision to ignore it so blatantly seem even more egregious. The Administration will argue that exigent circumstances, allegedly Sgt. Bergdahl’s health, justified proceeding without giving property notice, but this makes little sense. It seems obvious that the arrangements for this transfer took some amount of time to put together, why couldn’t the Administration have notified the appropriate Congressional Committees at that point? Even if there aren’t any legal consequences per se, it strikes me that failure to take even this limited step is going to create political problems with Congress that the President could have very easily avoided.
Inevitably, there will be hearings about each of the aspects of this story that are raising controversy, but it strikes me that this may be the most important one that Congress needs to deal with. Much was made during the Bush Administration of the President’s disregard for the limits of his Constitutional authority, and rightly so, and here we have another example of it sitting right in front of us. Members of Congress are upset, and they have every right to be upset. The President did something he should not have done, and he didn’t follow the law. The fact that he did it for a “good reason” is, in the end, rather irrelevant.
Update: The videos of the remarks by Toobin and Turley were inadvertently left off the post when it was first published, they have been added now.
Update 4/4/2014: The above links are to the FY 2013 version of the the NDAA [PDF], which was apparently the first to include the notice requirements rather than a complete bar on transferring prisoners without Congressional consent. The new notice requirements, set forth in Section 1035 of the FY 2014 NDAA, are essentially the same, although the notice period was extended from 10 days to 30 days:
(d) NOTIFICATION.—The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection. Each notification shall include, at a minimum, the following:
(1) A detailed statement of the basis for the transfer or release.
(2) An explanation of why the transfer or release is in the national security interests of the United States.
(3) A description of any actions taken to mitigate the risks of reengagement by the individual to be transferred or released, including any actions taken to address factors relevant to a prior case of reengagement described in subsection (c)(3).
(4) A copy of any Periodic Review Board findings relating to the individual.
(5) A description of the evaluation conducted pursuant to subsection (c), including a summary of the assessment required by paragraph (6) of such subsection.
The 2014 language is slightly different from the 2013 language, but not substantially so, and not in a manner that would give the Administration much of an out here, in my opinion. At the very least, they have created unnecessary political problems on both sides of the aisle on Capitol Hill just because they didn’t do something as simple as pick up the phone last week and notify the heads of the Intelligence and Armed Services Committees in the House and Senate of what was going on.
#1 question: does this give Republicans the justification to impeach? We know they’ve been angling for that since November of 2008.
Any President would have interpreted the law as Obama did in his signing statement.
And even if they didn’t, they would still have done as Obama did, because a President will always, always, always choose to follow the executive power when the legislative power conflicts.
I challenge anyone to keep a straight face while telling me a Republican President would have notified Congress and waited 30 days to move on an opportunity to get an American POW back from enemy custody. Puh. Leeze.
Start writing up the Articles of Impeachment. (I can’t wait to hear you explain how you are going to impeach the President for bringing home a POW…and because he didn’t notify the appropriate Congress-Critters apparently)
Stop talking the talk and walk the walk.
IMPEACH!!!!
The GOP has been itching for a lynching since a black man dared to enter the oval office. Bring it on.
Is that the same nitwit that was on Wolf Blitzer at around 6:00 pm yesterday? If it is, that’s what prompted this comment by me on Twitter.
This moron on CNN stated repeatedly that the administration broke the law but then hedged and said, “Sure, the law might be unconstitutional, but the Supreme Court usually won’t intervene in disputes between Congress and the Executive Branch.”
So, the $1,000,000 questions is: What, exactly, is the executive branch supposed to do if Congress passes an unconstitutional law but the judicial branch refuses to hear the case?
@Mikey:
Except, a Republican president wouldn’t have traded 5 of the worst Taliban prisoners for a deserter who may have possibly provided aid and comfort to the enemy
@William Teach:
No, a republican president would have baked a cake for the terrorists and sent them weapons.
Idiot.
Apparently , there are people who do disagree. Maybe we should send Bergdahl back!
As far as the law is concerned, maybe we should get rid of laws we have no intention of enforcing? I think it’s fairly clear that Congress doesn’t want to be put in the position of vetoing a deal that brings American POWs home, no matter how they huff and puff about this being a bad deal. Brian Buetler:
You can bet your sweet patootie that John Mc Cain, Ted Cruz, and all the other grandstanders are never going to go on the record to say that any number of Gauntanamo detainees are worth more than an American POW, even one that isn’t a hero.
@William Teach:
The Republican Party is still upset that Bin-Laden was captured and killed during the Obama presidency.
@William Teach:
Ever heard of a President named Ronald Reagan? You conservatives seem to think highly of him. Guess what he did!
If Bush could justify torturing people and extraordinary rendition legally, I have full faith that the Office of Legal Council has drafted justification under the law for this deal. Because a prisoner transfer is really the worst thing to come out of the War on Terror when it comes to breaking the law.
For those too young, or like most Republicans too dishonest, to remember, here’s what Saint Ronnie O’Reagan did:
So that would be Ronald Reagan negotiating with terrorists in violation of US law, sending anti-tank missiles to said terrorist sponsor state, and sending along a cake with a personal inscription.
@stonetools:
You can’t use facts with a guy that dresses like a pirate.
So, President Eisenhower acted unconstitutionally when he (not the Congress) federalized the Arkansas National Guard (the “state militia”) in response to Governor Faubus’s ordering of the Guard to obstruct the entry of black students into Little Rock Central High School? No. The president does have such power, given to him or her by the Congress:
10 U.S. Code § 332 – Use of militia and armed forces to enforce Federal authority
I realize that the delegation of this power to the president by Congress supports the “not on his or her own” claim, but this comment is to head off the — false — inference from the quoted assertion that the president cannot call out the militia without congressional approval in the instant.
A very good examination of the issues here, Doug. Thanks!
Maybe I missed it herein, but so far in all the various commentary about the legality of the swap, I seem to be the only one to point out another delegated power of Congress in regard to warmaking. It is the delegated power in Art. 1, Sec. 8 to “… make Rules concerning Captures on Land and Water.”
Clearly (to me anyway), the statute that sets conditions upon which Gitmo detainees – who are certainly examples of “Captures” no matter how else you define their status – may be released is firmly within the delegated powers of the Congress.
I posted about that angle here.
I don’t know. It would be important to see what kind of notification the law requires, exactly, because Obama has said he did consult with Congress and John Boehner seems to have inadvertently admitted that’s the case, saying “There was every expectation that the administration would re-engage with Congress, as it did before, and the only reason it did not is because the administration knew it faced serious and sober bipartisan concern and opposition.”
@William Teach:
A Republican President sold millions of dollars worth of weapons to f**king Iran to get hostages released.
Just send the guy back to the Taliban already.
Saxby Chambliss:
For those of you without a calendar…1-1/2 years is more than 30 days.
So much for Congress not being notified.
Doug, all you have to do is keep these two ideas in mind:
1) It’s OK for Obama to do something because Bush or another Republican did the same thing, or something vaguely like it.
2) When Bush or whoever did that thing, it was the WORST THING EVAR.
All you have to do is keep those two ideas from actually touching…
BTW, and this is simply a matter of curiousity, how does this:
apply to prisoners released from Gitmo? As I read that, it only applies to prisoners released from the detention facility at Parwan, Afghanistan. The five being discussed were released from the military prison in Guantanamo Bay, right?
As I said, I’m just curious. How does it apply?
@C. Clavin: Cliffy, you keep on asserting your aggressive stoopidity.
Boehner confirmed that the White House was considering the idea. The law says they have to notify Congress before acting.
But hey, we got a Taliban-sympathizing deserter in exchange for five Taliban leaders, so it’s all win-win, right? And we only lost at least half a dozen troops trying to find that Taliban-sympathizing deserter…
@michael reynolds: Name-calling. The argument from the sewer.
@sam: You gotta keep reading. The reporting requirement is in Section 1028. 1024-1025 and 1027-1028 are basically cut-and-paste copies of the same verbage, just specifics changed.
Ah, then, the wrong section was quoted. OK..
@Jenos Idanian #13:
I understand you wanted to leave the guy with the Taliban.
Good for you and your girl Palin and the guy that dresses like a pirate.
I suggest you all contact your House and Senate members and instruct them to begin impeachment proceedings immediately if not sooner for this heinous act of high-treason.
@C. Clavin: I understand you wanted to leave the guy with the Taliban.
Well, it looks like he wanted to be there, Cliffy…
Also, Cliffy, why aren’t you parroting the Straight Truth from Susan Rice? Bergdahl “served with honor and distinction,” and “was captured on the battlefield.” And Susan Rice would never lie, would she?
@C. Clavin: Oh, and Cliffy? All Obama had to do was follow the law. But to expect him to “faithfully execute” the law is racist or something, right?
@ Jenos
I’m glad you are here, can you explain the tragedy of the commons for us in more detail?
As far at the whining from the right about bringing one of our own home – by all means, impeach. Bring it on.
I won’t even bother reading the article. This, and Republican rants all day, just go to prove that for Republicans, life is cheap. They are willing to throw away the life of Bergdahl for a political advantage and to follow the jot and tittle of a law. I have ZERO respect for these guys, and am going to register Democratic simply out of spite.
Do you have proof that this man deserted? We are, after all, talking about a member of the US Armed Forces who has served in a combat zone. I though that was something conservatives respected.
Oh, sorry. I forgot that “support the troops” is a political slogan on the right, not an actual value that is practiced in the real world.
If he is deserter, by all means let the military justice system deal with him. In the meantime, perhaps candy-ass, never-served armchair warriors can pipe down a bit and stick to reading Clancy novels.
@anjin-san: Did that already, Annie. The solution to the Tragedy for those who aren’t total control freaks is to make one person responsible for it — i.e., private ownership. Or divvy it up and give a piece to everyone.
But back on topic…
And I can see why you’d want to label Bergdahl one of your own — he hated America, hated his chosen role, and sympathized more with the Taliban than the US. Oh, and he got at least six GOOD soldiers killed looking for him.
Do we actually know any of that to be true?
@anjin-san: I’m “supporting the troops” who are now coming forth, after years of being gagged by mandated NDAs, to tell the part of the story that was suppressed.
See the link to CNN’s Jake Tapper, above, where Bergdahl’s Team Leader talks about Bergdahl’s disappearance. And that’s just one example.
@sam:
Given the source, there’s no reason to think any of it is true.
@Jenos Idanian #13:
Tell us more about the Tragedy of the Commons????
Now Boehner is calling for a hearing to investigate this? Another hearing? What about hearings on ways to boost the economy? How about hearings on creating jobs? How about a hearing on the failing infrastructure? You know, I hear Republicans ever complaining and lamenting the “decline” of the U.S. What they fail to lament is that THEY are the ones causing it to happen.
Putzes.
@sam: Pardon, sam, I’m having to get a little MPD here. I’m going to try to have a civil discussion with you (until I leave for a few hours — family obligations) while fending off the a-holes.
I used a little hyperbole because I was dealing with the a-holes, but Bergdahl’s good-bye notes make his attitude clear:
“‘…life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong…. I am ashamed to even be (A)merican.”
“Bergdahl had called his battalion commander a ‘conceited old fool’ and his peers an ‘army of liars, backstabbers, fools and bullies’.
He also disappeared without his armor or rifle, but with a couple of MREs, his knife, and several bottles of water.
@Jenos Idanian #13:
Of course, the part of the story that hasn’t been told is his part of the story. Don’t you think you should withhold judgment until he has a chance to tell his side? Or no?
@C. Clavin: Cliffy, I know you’re desperate to change the subject from Obama’s Latest F-Up, Chapter 117, but I’m not going to help you.
But don’t worry, Cliffy, Bergdahl won’t be tried. Because that would mean admitting that Obama screwed up, so he’ll get an honorable discharge, probably for “health” reasons.
@sam: There’s a hell of a lot of circumstantial evidence indicating he was deserting, sam. And more incriminating, that’s all coming out now, with specific indications that it was being suppressed.
It’s possible Bergdahl didn’t desert, but the odds aren’t very good.
@ Jenos
If you ever want an opportunity to tell me I hate our country to my face, I will try to arrange to make it happen.
@ Jenos
Meanwhile, you have already labeled him a deserter in public. What a pathetic little chickenshit weasel you are.
@anjin-san: Oh, help! Internet tough guy! I’m being oppressed! Come and see the violence inherent in the system!
Weren’t you bragging about your gun collection, annie, and your shooting skill? Yeah, you were. I see why you’re in favor of gun control; hotheads like you can’t be trusted.
@anjin-san: I actually own guns and know how to use them.
If you ever want an opportunity to tell me I hate our country to my face, I will try to arrange to make it happen.
Meh. Not worth any more of my time.
@anjin-san: I’m giving him the same benefit of the doubt you gave George Zimmerman. Hell, even more, ‘cuz I’m acknowledging that I’m opining based on information known as of right now.
@dennis: Yeah, I hear there’s only one hearing room in Washington.
@ Jenos
Do you regard getting annoyed when some pipsqueak tells you that you hate America as the action of a hothead? I would say it’s a pretty normal response. People that know me will tell you that I am very level headed and easygoing.
And yes, I did mention that I own a few guns and that I am a decent shot? Is that bragging. Nope. The guns I own are nothing special, and I know lots of guys who can beat me target shooting on their worst day.
At any rate, we all understand very well what kind of man you are. The kind who is very brave on the internet, but gets very quiet and humble when he is actually around other men who may see things differently than he does. Like I said above, a CSMF.
These bozos complaining about this deal are the same ones who complained when al-Awlaki got smoked in 2011. The life of an avowed terrorist and U.S. enemy is oh, so precious; but, Bergdahl can rot in hell in a Taliban cell for all they care. The hypocrisy is astounding.
(Shrug)
I have heard no member of Congress, not even Ted Cruz, say they would have vetoed the deal and I suspect I never will. Jenos is going to keep on wanking that the most important thing is not the return of last American POW to his family, but whether the letter of a useless law has been observed. He apparently would have preferred that Berdahl be left to rot in a Taliban prison. And of course, Jenos is sure he would have behaved heroically in Afghanistan, because of his own years of military-oh wait…
@ Jenos
Enjoy your “anjin-san threatened me with guns” fantasy, no doubt it is the high point of your week.
@Mikey: Violated the law, yes. One wonders what the reaction from Capitol Hill and the media would have been if Congress had vetoed a proposed swap deal. I guess they assume the Taliban would’ve come back to the bargaining table and offered better terms, perhaps a 3-for-1 swap instead of 5-for-1.
Stripping the CiC of his ability to negotiate prisoner exchanges will probably one day be known as one of the “Obama laws”, laws made specifically for him, as there was a significant portion of the country that could not accept him as CiC but lacked either the ability or the balls to remove him from office.
Yes, he broke it. Good.
I was not aware that Zimmermann was a member of the armed forces when he shot Martin. As I recall, he was a somewhat marginal character with an arrest record, a history of anger management issues, and a restraining order against him by way of an old girl friend.
“Support the Troops” indeed…
@Pinky:
Well, Pinky, I’d be happy, and would stand corrected, if you enlightened me of the congressional hearings on those items I noted, and anymore that are constructive and advance the progress of the U.S.
Jenos & Anjin-san – You two both realize you’d be disgusted by your own comments if the other guy had written them, right?
Source: Huffington Post:
F*****g hypocrites, all.
@dennis:
http://www.house.gov/
https://www.senate.gov/pagelayout/committees/b_three_sections_with_teasers/committee_hearings.htm
transportation safety, student loans, IP transition, energy jobs, intellectual property…
@Jenos Idanian #13:
Let me know how well you deal with combat.
@Jenos Idanian #13:
Really? So we are going to divvy up all of the oceans and all of the atmosphere, nevermind that they and the things in them are constantly moving so that was was on one privately owned slice of ocean or atmosphere will be in or on another in minutes or days? Are your ideological blinders really so all pervading that you cannot see that that is nonsense or are you just allergic to admitting when you are dead wrong?
@ Pinky
Let’s see. I said it’s not ok to trash a combat vet for political gain, that telling me I hate America is basically fighting words, and that George Zimmermann was/is a known weasel. Nothing there I won’t stand behind.
@ Pinky
I certainly will not dispute that Jenos is very, very annoying and that he does not bring out the best in people. It’s his one and only talent, and he is good at it. OTB was a much better place during his all to brief sabbatical – that’s his gift, he lessens things by his association.
The president should have vetoed the National Defense Authorization Act and demanded the executive retain the power the execute prisoner transfers without getting a note from Congress. I don’t claim to know whether or not this restriction is constitutional, but even if it’s not, a signing statement should not be used to nullify it. That’s what vetoes are for.
That said, Republicans are making asses of themselves by pretending Obama invented the power conflict between the legislative and executive branches or that using his power to bring home a POW is even remotely as bad as what Saint Reagan did.
I have heard plenty about the agreement to swap, but haven’t seen when the prisoners actually left GITMO. Have they already been transferred? Where are they now?
If they are still in GITMO, aren’t we really talking about him potentially breaking the law?
@dennis:
What’s astonishing is that until a week ago, the entire right wing BS machine was hammering Obama for his refusal to push for the return of “our” last POW-Pajamas Media, Hot Air, Twitchy, the lot. Heck , one blogger urged the President to “use force” if necessary, to rescue Sgt. Berhdahl. Just days ago, this is how he was described in a CNN profile:
Then, the RWBSM decided that Obama couldn’t get credit for bringing a POW home, and the character assasination began, along with talk of illegality. No wonder Obama seems unprepared for the attacks. Until it looked like a deal would succeed, the Administration dthought that no one had a problem with doing what was needed to do to bring a POW home. Then Obama succeeded, and all of a sudden the right wing had all kinds of problems with the deal. Talk about ODS…
I can’t really force myself to believe the GOP is now the party of “some POWs left behind”, no matter how much Jenos supports that idea. I have to assume the GOP is simply butthurt that Obama did something, which has been the norm for his entire presidency.
@Pinky:
Thanks, Pinky. Although, I see those are upcoming events …
Just possibly, I sense another “Terry Schiavo” minute coming for the right wing. Seems to me they have crossed a solid unAmerican line this time.
@Jenos Idanian #13:
Once again, please explain how we can divvy up the oceans and lakes and rivers and give a piece to everyone.
Or divvy up the air so that the piece of air that you choose to pollute doesn’t drift over into my non-polluted air space.
@Rafer Janders:
That’s easy for Republicans… Just give it to the Koch’s.
@Jenos Idanian #13:
I think everyone here has agreed he should be investigated and tried if that’s indicated.
Where we differ from you and Palin and the guy who dresses like a pirate is that we are not willing to leave a POW behind based on what even you admit is circumstantial evidence.
I’ve never been in combat. But I have seen up close what 3 tours in Afghanistan did to my nephew. So I’m willing to give the benefit of the doubt to this guy until we know more.
You want to condemn him based on what RedState tells you. And the Tragedy of the Commons…which you cannot comprehend.
There have been deserters in every war in our history. Thousands in WW2.
We have learned over time that modern warfare breaks men down very quickly. The worst was WW1 because for the first time ever men were actively in front line situations not for hours – as they might have been at Troy – but for months. At that point they called it shell shock, and between WW1 and WW2 the shrinks began to understand the fact that ALL men break if they stay too long in combat. SOME men break more easily than others. But all will eventually break, given enough time.
So with that understanding – an understanding that’s easily 70 years old now – we need to look at desertion not simply as cowardice or as failure (although in some cases it may be) but as a form of injury.
Now, I don’t know Bergdahl’s precise situation, none of us do. But none of us who have not been in combat have any business calling him names or assuming anything. If he broke under stress, then we should feel compassion not contempt. And God knows in the last 5 years he’s gone through hell.
So what we KNOW is that he is an American citizen, who volunteered to don the uniform of our country, went to war, and spent 5 years as a POW. Everything else is speculation and rumor.
Jenos and I share the fact that neither of us has done anything nearly as difficult. One of us knows better than to strut around acting like we know we’d have done it better.
@Jenos Idanian #13: “he solution to the Tragedy for those who aren’t total control freaks is to make one person responsible for it — i.e., private ownership. Or divvy it up and give a piece to everyone.”
Honestly, until you posted this, I had no idea it was possible for any human being with the ability to type to be this breathtakingly stupid. You simply have no idea about… anything.
Seems like just yesterday that conservatives were telling us that even questioning the “unitary executive” was akin to treason.
@anjin-san: Interesting.
you called a similar action is many respects ‘treason’ when Reagan did it. On this very site, no less.
But, when a Democrat does it, anjin defends him.
Intelectual honesty and integrity, anjin style.
(snicker)
@ Florack
Work on your reading comprehension bub.
I am talking about average citizens criticizing the actions of a President. Not anything President Reagan ever did.
@stonetools: Yeah, it is mind boggling how hypocritical the right is.
This whole affair is why the who both sides do it cliche is bull****. Yeah, Democrats can be partisan hacks, but the GOP takes it to a whole new level.
Hey Doug, have you ever thought about monitoring the comments section? The sophomoric invective being slung on here isn’t even mildly entertaining.
@BluesState/RedState: Would take time, or interns. Guys, please don’t feed the troll. Just downvote and move on.
@Grewgills:
@Rafer Janders:
Any day I get to quote Blood Meridian semi-relevantly is a good day…
I think the big difference between the Bush and Obama administrations re:breaking the law is that Bush and co. never straight up admitted that they were breaking the law or ignoring the law. I believe an Obama official admitted they broke the law:
Government transparency!
@dennis: Well, yeah. That’s how lists of upcoming events work. I guarantee you that this isn’t the first week that Congress has held hearings about the economy and jobs.
@anjin-san: You really need me to bring up the link for you?
Less finger pointing and more concrete action in these areas would be nice.
@ Florack
Like I said, work on your reading comprehension. Get back to me when that task is complete.
@Pinky:
Don’t bet; show me. Those hearings may get postponed. Show me what has happened, not what someone speculated or is planning to happen. We may get hit with an asteroid tonight …
Wow. I’m amazed at what I’ve learned about my own positions.
I said that Obama should have followed the law he signed and notified Congress before he agreed to trade five top Taliban commanders away. Somehow, that became a denunciation of the entire deal.
No wonder so many here support Obama. You tend to react to what you wish people said, instead of what they actually say. Similarly, Obama treats the law as if it says what he wants it to mean.
As far as Bergdahl getting tried for desertion, dream on. The Official Story is in play — he “served with honor and distinction” until he “was captured on the battlefield.” (Ambassador Susan Rice, Official Disperser Of The Official Story). He’ll be treated as a returning hero until given his honorable medical discharge, with his two promotions since he was taken preserved (and, possibly, another one). Because at this point the Obama administration is too invested in that narrative.
@Jenos Idanian #13: We’ve been through this before, dear. The fact that you write so badly that people fail to appreciate your genius is not the fault of the readers. Take a class, learn how writing works.
Has anyone here actually read the law and the signing statement? There is infuriatingly little recent discussion of them anywhere to be found. I would really like to see an informed discussion of these documents, especially as relates to HR 4310 Section 1028.
http://www.gpo.gov/fdsys/search/pagedetails.action?packageId=BILLS-112hr4310enr
http://www.lawfareblog.com/wp-content/uploads/2013/01/2013ndaa.stm_.rel_.pdf.pdf
@Jenos Idanian #13:
You should understand that the deal may not have happened at all if it had been disclosed to Congress and some grandstanding Republican representative decided to screw things up by publicly opposing it. The likelihood of that happening was sufficently high that the Administration decided to avoid the letter of the law. Its why it’s a stupid law-you don’t conduct hostage/.POW negotiations of this kind with the kind of restrictions that Congress put on the excecutive.
The more I consider how this is playing out, with a president ignoring a [dumb] law and a Congress just sitting on their arses complaining about it, the more distressed I get by the precedent being set.
Public approval of Congress is in the single digits. Congress doesn’t exercise its Constitutional prerogatives, delegating to the executive in order to have political cover. Given a clear example of an administration ignoring or bypassing a law in two consecutive presidential tenures (Bush and torture, Obama and…prisoner swap procedure*), they choose to do nothing but complain. They pass non-binding resolutions of condemnation and content themselves with having accomplished something without merit.
I’m not saying Obama is a tyrant. People who think so are deluded. I’m saying the behavior of the Congresses under Bush and Obama with this willful abdication of responsibility is setting us up for an actual tyrant. Our institutions can degrade only so far before a tyrant can credibly claim s/he** represents the will of the people.
Then again, I am a worrier and I’m probably agonizing over nothing.
* Or Libya, I suppose.
** All hail Hillary Clinton, President for Life?!!?
@dennis: Seriously?
@Tillman:
+ Infinity
Chills down my spine, man, every time I read it.
@Tillman:
I think you succinctly nail why — despite any results — this is deeply problematic. Regardless of what side one is on, this most recent action is another example of the further development of the Imperial Presidency.
And as a long term proposition, this is not a good trend.
And Congress is, without a doubt, playing a role in enabling the continued rise and justification of the Imperial Presidency.
I was in the very unenviable position of being for the War but against the Troops. – Bill Hickss
@Matt Bernius: A venal and cowardly legislature plus an executive that will always seek to accrue power…what could possibly go wrong?
@dennis: Congressional Committee Meetings, taken from the Congressional Record from 5/4/14 (I chose one month ago today at random):
Senate: Military compensation proposals, education budget, highway and transit funding and financing, Ukraine, efficient and effective government, Intelligence
House: American Research and Competitiveness Act of 2014, IRS investigation
Joint meeting: on Georgia, Ukraine, and Moldova
Short answer to the question posed by the headline: “No.”
People keep wanting to pick fights with someone too strong for them.
I love how the credit box at the bottom of the blog states this fella’s credentials as JD from George Mason University. Good for him, I think–I’ve never heard of the place. But before people go questioning our President and whether or not he did something legally, you might want to consider his credentials: Juris Doctor (J.D.) Magna Cum Laude —Constitutional Law– little school you might have heard of: Harvard.
The wind from all these GOP swings and misses is enough to knock me over.
T.S.
@C. Clavin: 22 U.S.C. § 1732 (1964)(requiring the President to use such means as are necessary, short of war, to effect the
release of American citizens unjustly imprisoned in foreign countries) For authority
that the decision whether to extend protection in a given case is a matter within the
Executive’s discretion, see E.M. BORCHARD, TOn December 1 Katzenbach replied saying that the release of Ivanov, a career officer in the KGB, for an American tourist, Peter Landerman, would be a bad bargain, and he could not concur in the suggestion made in Rusk’s letter. (Ibid.) On December 8 Rusk raised the issue again saying that the reason for expelling Ivanov was not to gain the release of Landerman but to help in protecting and assisting all American citizens abroad and would be in the overall interest within the broad spectrum of U.S. relations with the Soviet Union. (Letter from Rusk to Katzenbach; ibid.) One week later Bundy sounded out the President on Ivanov. Johnson told him that “on the facts as presented, he would incline to the side of Justice.” (Memorandum from Bundy to Katzenbach, December 15; Johnson Library, National Security File, Country File, USSR, Vol. VII)