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Why It Matters That Obama Didn’t Follow The Law In The Bergdahl Release Deal

Obama Thinking

Conor Friedersdorf explains why the fact that the President failed to comply with the law requiring notice to Congress before transferring prisoners out of Guantanamo Bay:

What’s alarming is the unlawful way that the Obama administration carried out the swap. The law requires 30 days’ notice to Congress before a Gitmo detainee is transferred or released. The White House has now brazenly flouted that requirement. And the precedent being set by Team Obama is problematic in the same ways as the executive-branch power grabs that happened during the Bush Administration. In fact, Senator Obama was a critic of the logic he has now shamelessly adopted. He decried signing statements, for example, but cites a signing statement of his own as if it is a defense against violating the plain text of what he signed.

The illegality of the Obama Administration’s actions is underscored by the way their story keeps changing. The White House began by hinting that the 30-day notification requirement is unconstitutional. But it is unwilling to press that claim. Its current position is that Congress didn’t intend the law to say what it says.

(…)

If the president truly believed that the bill was unconstitutional, he had a duty to veto the bill pursuant to his oath to uphold and defend the Constitution,” a commenter at The Volokh Conspiracy points out. “President Obama didn’t veto the bill, and instead made it the law of the land. Having done so, he cannot now complain that the law he is ultimately responsible for is unconstitutional and doesn’t need to be followed …. A country where the laws apply to the people but not to the president, even when the laws are specifically directed towards the executive branch, is not governed by the rule of law.”

This is hardly the most egregious abuse of executive power America has seen in the War on Terrorism. Yet the fact that the rule of law has already been eroded so much is all the more reason to zealously conserve what’s left, rather than excusing any abuse that doesn’t approach the worst of what we’ve witnessed. Impeachment would be a wild, irresponsible overreaction to Obama’s unlawful prisoner swap. But neither can Congress afford to let the executive branch defy it with impunity, so some lesser step to remove the incentive for future lawlessness would be welcome.

In making note of the Administration’s evolving justification for evading the notice requirement that is clearly set forth in the law, Friedersdorf makes note of a statement from the National Security Council to the press, which I’ve embedded below, that takes the argument to an entirely new level:

With respect to the separate 30-day notification requirement in Section 1035(d), the Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances, in which the transfer would secure the release of a captive U.S. soldier and the Secretary of Defense, acting on behalf of the President, has determined that providing notice as specified in the statute could endanger the soldier’s life.

In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. soldiers. Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.

The President also has repeatedly expressed concerns regarding this notice requirement. For example, the President’s FY14 NDAA signing statement indicated that “Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.” To the extent that the notice provision would apply in these unique circumstances, it would trigger the very separation of powers concerns that the President raised in his signing statement.

In other words, the President is asserting for himself the authority to determine that Congress doesn’t really mean what the law it passed, and he signed into law, clearly say in plain language. And, as Freidersdorf put it, the Administration can ignore a law as long as the Secretary of Defense determines that it is “necessary to protect Americans abroad or U.S. soldiers.” That’s about as open ended a justification as you can get, and one that would’ve made Bush Administration officials like John Yoo and Donald Rumsfeld quite proud. After all, they determined that torture was necessary to protect the homeland and the troops, so it’s really hard to see what the difference between Bush and Obama is when it comes to the issue of Executive Power. Once again, in other words, we see that the differences between Barack Obama and George W. Bush are far less than the supporters of either one of them would like to admit.

This would still be a problem, by the way, even if there weren’t serious questions about how Bowe Bergdahl went missing. Even if he were a decorated soldier with a spotless record, there is quite simply no justification for ignoring the requirements of the law in a situation like this. Even if we accept the Administration’s contention that there is evidence that Bergdahl’s health was deteriorating, or that he was otherwise in danger, thus necessitating an effort to get him released, there was obviously enough time for the White House to follow the proper notification procedures. Indeed, even if they had just called up the Chairs and Ranking Members of the appropriate committees and the Majority and Minority Leadership in both Houses and told them what was going on last week I’m betting that they wouldn’t be dealing with half the political headaches that they are going to be dealing with going forward. It wouldn’t have been strict compliance with the law, but it would have been something and it probably would’ve been enough for most people. Instead, they went ahead and did this, and now they’ll have to deal with the political consequences. Quite frankly, they deserve it.

Even if we accept the argument that this law was a bad law for some reason, or that it was in fact an unconstitutional infringement of the President’s powers and Commander in Chief, as unconvincing as that argument might be, the willful decision to ignore the law and then engage in legal and factual legerdemain to try to justify that after the fact. We live in a nation of laws, and those laws apply as equally to the President of the United States as they do to anyone else. Unless and until the law is repealed or a court has declared it unconstitutional, then it is still the law and it ought to be followed, and there ought to be consequences of some kind when it is deliberately and blatantly ignored  in the manner that the Obama Administration has done here.

Friedersdorf is right that ignoring the law with impunity like this is something that Congress can’t ignore. There certainly ought to be hearings, and I’m sure people like Senator Dianne Feinstein are already looking into that possibility. Perhaps there need to be changes to the law to reign in an overly assertive Executive. Most importantly, though, the American people need to wake up to the reality of what The Cult Of The Presidency has created and demand that the people who they elect to that office act differently in the future. Because if they don’t then this will just keep happening over and over again.

Here’s the text of the NSC’s statement to the press:

NSC Statement On 30 Day Transfer Notice Requirement In 2014 NDAA by Doug Mataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. JWH says:

    Part of the problem with vetoing the law is that, as I understand it, the notification requirement was part of a defense appropriations bill that President Obama didn’t feel like he could veto.

    I happen to think that this particular law was an unconstitutional intrusion into the president’s role as commander-in-chief of the military.

    But at the same time, I think President Obama shouldn’t try to weasel his way out of it. Instead, he ought to state plainly that he thought the law was unconstitutional, note the exigent circumstances that he thought exempted him from the requirement … and then put the onus on Congress to challenge his actions in court.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 1

  2. DrDaveT says:

    The White House has now brazenly flouted that requirement.

    How can I disagree with someone who uses the word ‘flouted’ correctly?

    That said, I am entirely unpersuaded by a “slippery slope” argument that worries how much this erodes the overall Rule of Law, at a time when the US is torturing criminals, spying on citizens without warrant, incarcerating as many black men as possible, and spending hundreds of billions of dollars per year on undeclared non-wars.

    Highly-rated. Helpful or Unhelpful: Thumb up 38 Thumb down 4

  3. gVOR08 says:

    It looks like Obama has played this badly politically. He should have given notice to Congress IF the situation allowed. But he’s faced with only bad choices. It’s all too easy to picture the outrage on the right had he left Bergdahl there once we’re essentially out of Afghanistan, or had Bergdahl died in captivity. At that point Bergdahl would have been a great American hero, due the Medal of Honor, at least. Given the chance to move, Obama pretty much had to.

    But sorry Doug, this falls under the heading of it being the GREATEST OUTRAGE EVVAH!!! whenever Obama does what his predecessors have done routinely. Seems to me that if people are all that concerned about The Cult of the Presidency they should have brought it up when Schlesinger wrote The Imperial Presidency or maybe during Iran/Contra or at least during the Bush/Cheney/Unitary Executive and Permanent Campaign.

    Y’all want to impeach Obama for bringing home a soldier, even one of debatable moral fiber (1), go for it.
    _____
    (1) Personally, I think home schooling made him unable to deal with the real world. I have as much evidence for this as people have for most of what’s flying around.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 3

  4. stonetools says:

    Why don’t we wait until the congressional hearings. There may be a good reason why the Administration acted to evade the letter of the law. Let’s remember, saving a life has always been seen as a justification to break any law, and that might be the reason in this case.
    FWIW, I agree that this is a stupid and most likely unconstitional law, but the the Supreme Court gets the final call on that one.
    Finally, I am just gobsmacked at how unprepared the Administration was for Republican pushback on this. The Administration seems to have taken it for granted that it would be greeted with universal adulation for bringing back Bergdahl. It’s like 6 years of Republican opposition to everything Obama does was forgotten. I’m sorry, but the Obama Administration PR team needs to raise its game. To borrow a quote, “In the game of thrones, you either win or you die.” Now should the Administration expect that the right wing would do everything, including smearing Bergdahl’s family, to attack the Administration on this? Well, based on anything that happened since Janaury 20, 2009, they shouldn’t have expected anything less.

    Like or Dislike: Thumb up 14 Thumb down 3

  5. C. Clavin says:

    Impeach him. The nerve of this tyrant bringing home a POW. And while he has the most compliant Congress in history, too!!!
    Yeah… Just impeach him.
    Oh wait….I just remembered… Republicans don’t have the balls.
    They’ll just hold 7 investigations and hearings.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 4

  6. C. Clavin says:

    Obama:
    “We had discussed with Congress the possibility that something like this would occur,” he said. “But because of the nature of the folks we were dealing with and the fragile nature of these negotiations, we felt it was important to go ahead and do what we did. And we are now explaining to Congress the details of how we move forward. But this basic principle that we don’t leave anybody behind — and this basic recognition that it often means prisoner exchanges with enemies — is not unique to my administration. It dates back to the beginning of our republic.”

    Like or Dislike: Thumb up 13 Thumb down 2

  7. Ron Beasley says:

    This is the sort of thing that happens when you have a dysfunctional congress. Bergdahl would have died before the Republicans gave Obama anything he wanted. I fear the Imperial Presidency as much as anyone and the fact that George W Bush’s adviser, John Bellinger, has come to Obama’s defense is troubling. Now if congress doesn’t like it they should take him to court and let the constitutionality of the requirement be tested but I don’t really see that Obama had any choice.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 4

  8. Matt Bernius says:

    The biggest problem here is that people want to frame this in terms of the options being:
    a. Impeachment
    or
    b. Do nothing

    Whether or not this is the worst example of the imperial presidency doesn’t really matter. Nor, frankly, does whether the ends justify the means.

    The general truth is that most partisans will support the behavior of their team and hate the behavior of the opposite team. And those folks will want the ability for their guy/gal to take these actions (because their side is always virtuous).

    That said, I think there is a growing amount of people who want the powers of both sides curtailed. The question remains as to whether or not, such curtailing is possible in the current system (where Congress has all but abdicated its oversight responsibilities and the nature of leaking is driving us to more secrecy, not less).

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  9. C. Clavin says:

    Sullivan on the Palinites:

    They have no constructive solution to this problem, of course. They have no constructive solution to anything else either – whether it be climate change, healthcare or immigration. But they know one thing: how to foment and channel free-floating rage at an impostor/deserter president for inheriting the national security disaster they created. This they know how to do. This is increasingly all they know how to do.

    Highly-rated. Helpful or Unhelpful: Thumb up 25 Thumb down 4

  10. JWH says:

    Obama really did muff the PR angle on this. Is there some magic dust in the White House that makes flacks lose touch with how some of this stuff looks from outside 1600 Penn?

    IMO, the best way to do this would have been:

    1) Negotiate deal with Taliban in Qatur.
    2) Put Taliban internees on plan to Qatur
    3) Accept Bergdahl from Taliban
    4) After Bergdahl has been received, send Congress a letter saying Berghdahl has been returned, and laying out the constitutional rationale for not providing notice of Gitmo detainees release.
    5) Arrange for Bergdahl’s family to go to Germany (or wherever) to meet him.

    And that’s it. No Rose Garden ceremony. No long speeches about Bergdahl being a hero. Just make it quiet and business like. If others wanted to make a big deal out of it, it should be on them, not on the White House.

    One final note about the PR of all of this: I think the WH flacks care entirely too much about Obama’s image these days. It was one think to overdo it in 2010 or 2011. But it’s 2014 now. Obama doesn’t have to face election again, so it’s a waste of time and effort to continue to make him look “presidential” or what have you.

    Like or Dislike: Thumb up 11 Thumb down 1

  11. C. Clavin says:

    @Matt Bernius:
    Yes, agreed .
    But that’s not the world we live in.
    See the quote from Sullivan in my comment above.
    So…enough of this BS. Go ahead and impeach him…or STFU already.

    Like or Dislike: Thumb up 6 Thumb down 4

  12. Tillman says:

    Impeachment would be a wild, irresponsible overreaction to Obama’s unlawful prisoner swap. But neither can Congress afford to let the executive branch defy it with impunity, so some lesser step to remove the incentive for future lawlessness would be welcome.

    Such as…what? The legislature doing its damn job? You can’t do that, any victory that happens under Obama’s watch gives him implicit credit. Friedersdorf is demanding that Congress do something it’s unable to do from collective fear of losing their jobs. Congressmen and Senators don’t give a damn at the end of the day about the institutional integrity of their chambers, they care whether they’re getting paid.

    I honestly would like them to do something, but I don’t have any hope that they will.

    @JWH:

    No Rose Garden ceremony. No long speeches about Bergdahl being a hero. Just make it quiet and business like.

    Unless this is some example of twelve-dimensional chess where Obama’s brilliant strategy is to lure the Republicans into impeaching him over a POW swap, I really don’t see why decided to go with all the pomp.

    Maybe Obama’s bitter, and he’s just rubbing it in their faces now?

    Like or Dislike: Thumb up 8 Thumb down 2

  13. stonetools says:

    @Matt Bernius:

    You and Doug should understand though that the abstract issue of the imperial prsidency pales into significance besides the opoprtunity and even the duty that the President has to save the life of an American citizen. I fear you guys are setting that aside as incidental, but that should be given perhaps the most weight. Had the President fulfilled the letter of law, but Berdahl died in captivity as a result, would that have been the right result? Doug seems to hint that it is, but I would disagree.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 5

  14. Matt Bernius says:

    BTW, for anyone concerned about the Cult of the Presidency/Imperial Presidency, any serious move to impeachment would be an absolutely terrible step to take.

    Because when said action fails — and it invariably would — said failure would most likely be seen as a confirmation that what Obama did ultimately was the correct action and that said attempt at impeachment was a clear example of Congressional overreach (see: Clinton, Bill).

    Like or Dislike: Thumb up 12 Thumb down 1

  15. Matt Bernius says:

    @stonetools:

    You and Doug should understand though that the abstract issue of the imperial prsidency pales into significance besides the opoprtunity and even the duty that the President has to save the life of an American citizen.

    Explain to me how this statement could not be used by the executive branch to circumvent existing laws and authorize torture?

    Because, if we return to post-9/11, it explicitly *was* used by the executive branch to circumvent existing laws and authorize torture.

    Like or Dislike: Thumb up 12 Thumb down 3

  16. just me says:

    Obama hasn’t been held accountable by congress and probably won’t be. Congress has slowly abdicated its power for decades-often to avoid making big decisions but also out of laziness.

    Obama was wrong here and while there might be hearings they won’t amounting much-first this isn’t impeachable imo so that’s off the table and congressional democrats aren’t going to let Obama come to too much harm.

    I do think Obama was foolish to think there wouldn’t be any pushback. I think he is used to the media protecting him but this one the media didn’t play along with. If the GOP AND overlays it’s hand the media might rescue him but he’s had two negative stories with legs in the last few weeks (the VA and this one) and may just have to weather the storm.

    Like or Dislike: Thumb up 5 Thumb down 11

  17. PD Shaw says:

    “If the president truly believed that the bill was unconstitutional, he had a duty to veto the bill pursuant to his oath to uphold and defend the Constitution,” a commenter at The Volokh Conspiracy points out.

    How can one argue with Mike0002? Certainly, he’s no Mike0001, and I’ve found Mike0003 excessively redundant. But at least you know where you stand with Mike666.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 1

  18. michael reynolds says:

    1) If the Congress is being ignored it’s because they’ve spent decades ceding their Constitutional authority. The exercise of power would require them to accept responsibility. They refuse. They have in effect abdicated.

    2) A Congress that refused to deal with hundreds of cases of presidentially-ordered torture – carried out in clear violation of US law, military law and international law – is not a Congress genuinely outraged by a failure to receive 30 day notice on a POW swap.

    3) This is not about law, this is about politics.

    4) Over the next few days I suspect we’ll be seeing things like the Bergdahl family giving interviews. I think we’ll also start seeing polling showing that this issue plays only to the hardcore base of the GOP. When the story gets out, the politics will shift to the detriment of the GOP.

    5) At which point they’ll quietly drop it from the mainstream agenda and leave it to the fever swamps of the Tea Party. Which will highlight the hypocrisy and callousness of Republicans.

    This is politics. Both ends of Pennsylvania Avenue know it, and the outcome will have little to do with law and everything to do with polling, which is to say, politics. We’ll have to see how those polls read.

    Highly-rated. Helpful or Unhelpful: Thumb up 32 Thumb down 3

  19. Mikey says:

    @Matt Bernius: I’m assuming stonetools meant it specifically in the context of the Bergdahl matter.

    Like or Dislike: Thumb up 4 Thumb down 2

  20. PD Shaw says:

    I think a lot of the signing statement stuff is overwrought. Both the President and Congress have powers concerning the handling of detainees, so potential conflicts are baked into the pie. But its not necessarily true that a law will always conflict with Presidential powers, its more likely to be circumstantial.

    That said, a President’s signing statement is not authority. Its like quoting yourself, or Mike0002. The question is whether the law actually conflicted with Presidential powers.

    Like or Dislike: Thumb up 7 Thumb down 0

  21. Matt Bernius says:

    @Mikey:
    I realize that. But that is the *broader* partisan issue at play:

    It’s ok when our guy does it. It’s not ok when there guys does it.

    And yes, before anyone asks, I do realize that this is a “both sides do it” argument. And no, I don’t think the two acts are equivalent. However, it’s pretty clear that both were using the same general idea to drive their action.

    And that presents the broader problem. The moment that you open up the space, the nature of the executive office is that it will take that space and some more. And once the precedent has been set, others will follow (see: Signing Statements – which apparently each side defends when their guy is in office and sees as the devils tool when they are out of power).

    Like or Dislike: Thumb up 5 Thumb down 0

  22. stonetools says:

    @JWH:

    One final note about the PR of all of this: I think the WH flacks care entirely too much about Obama’s image these days. It was one think to overdo it in 2010 or 2011. But it’s 2014 now. Obama doesn’t have to face election again, so it’s a waste of time and effort to continue to make him look “presidential” or what have you.

    To be honest, you wonder if there are WH flacks at all!
    Jack Lew-the White House chief of staff- seems like a nice guy who is good with numbers or something, but he is in over his head here. The WH chief of staff should be a mean SOB who should be thinking 24/7 about how to stop the opposing party from screwing the President on anything that happens-and of course, how to turn anything that happens to the President’s advantage? Where the hell was Lew when Susan Rice!!!! was told to go on national TV praising a possible deserter as a hero? You may as well put a big bullseye on the President’s back and say, “Fire at will.”

    Like or Dislike: Thumb up 7 Thumb down 0

  23. beth says:

    @stonetools: Picture this scenario. The deal is made, the prisoners exchanged and the White House quietly announces what happened. Do you really think the headlines at Fox wouldn’t be “Obama hides deal to release terrorists” ? No matter what he did, McCain would still be complaining about it on CNN and right wing news sites would be all up in arms over the secrecy in addition to the lawbreaking. This was a no-win situation except for getting Bergdahl back. Had Rice gone on tv and said nothing about him serving honorably, she’d be pilloried for disrespecting the troops. If she’d mentioned the desertion, she’d be condemned for blasting him without a trial. I don’t know how anyone could have lived through the last 6 years and think there was a way to do this that didn’t involve some kind of pushback.

    i don’t like how Obama went around the law with this and I didn’t like it when Bush did it either. Until we can get some sane people in Congress who can react to situations like this without acting like screaming toddlers, it’s going to continue.

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  24. Mikey says:

    @Matt Bernius: Remember Mikey’s first law of Presidential power: No President will take an action that would diminish the power of the office, and will always take an action if it expands that power.

    And the first corollary: if ever the executive power conflicts with the legislative, the President will always choose the executive power.

    There are few options, really, for the legislature in such instances. They can cut the purse strings or impeach. What else is there?

    And you’re right, of course–adherents to each side will view the President’s action through their particular partisan filter bubbles, and will lean on their legislative representatives to take action, or withhold action, based on what they believe they see.

    Like or Dislike: Thumb up 5 Thumb down 0

  25. stonetools says:

    @Matt Bernius:

    I’m assuming stonetools meant it specifically in the context of the Bergdahl matter.

    Indeed. I’m not announcing a general rule, I’m asking about this case.
    Beware the “slippery slope” argument.
    I could see the President presenting a case here that if he had disclosed it ahead of time, a Ted Cruz could go on TV grandstanding about the President’s “treasonous conduct” in trading “hard-core” terrorists for a “deserter”. Congress votes down the deal,the Taliban pulls out of negotiations and Berdahl dies in captivity. The letter of the law is fulfilled, but Berdahl dies. Given what’s happened since the deal was announced, I think this is a likely scenario.

    Like or Dislike: Thumb up 7 Thumb down 0

  26. Mikey says:

    @stonetools:

    Jack Lew-the White House chief of staff- seems like a nice guy who is good with numbers or something, but he is in over his head here. The WH chief of staff should be a mean SOB

    They had one, but he left and got elected mayor of Chicago.

    One has to wonder how Emanuel would have handled things like this.

    Like or Dislike: Thumb up 3 Thumb down 0

  27. JWH says:

    @beth:

    Picture this scenario. The deal is made, the prisoners exchanged and the White House quietly announces what happened. Do you really think the headlines at Fox wouldn’t be “Obama hides deal to release terrorists” ? No matter what he did, McCain would still be complaining about it on CNN and right wing news sites would be all up in arms over the secrecy in addition to the lawbreaking.

    Obama and his staff can predict, but can’t control, media and pundit reactions. But I think that in general, these sorts of things are best handled with a certain amount of modesty and decorum. This means taking care of things in a businesslike matter, NOT turning a simple prisoner exchange into a three-day dog-and-pony show.

    Like or Dislike: Thumb up 11 Thumb down 2

  28. Mikey says:

    @JWH:

    This means taking care of things in a businesslike matter, NOT turning a simple prisoner exchange into a three-day dog-and-pony show.

    Indeed. There are times to jump up and yell “LOOK HOW AWESOME I AM!” This…was not one.

    Like or Dislike: Thumb up 7 Thumb down 2

  29. Another Mike says:

    Doug writes: “Perhaps there need to be changes to the law to reign in an overly assertive Executive.”

    Here’s the thing Doug, how can a president who refuses to be bound by the law be bound by your change in the law to reign him in? All that congress can do to control a rogue president is to impeach him.

    Impeachment is not really a possibility. President Obama is a member of a tribe in a manner of speaking. The “tribe” will revolt, if their chief is attacked. This is how tribes operate.

    Another reason President Obama cannot be impeached, is that his party controls the senate, and his party is sticking with him. It takes two-thirds of the senate to remove a president from office.

    Unless President Obama does something that is so egregious that his own party in the senate abandons him, he cannot be removed from office. Of course, this means that Congress is willing to see their authority so debased that it can no longer even laughingly be called a co-equal branch of government.

    Like or Dislike: Thumb up 6 Thumb down 8

  30. stonetools says:

    @beth:

    I don’t know how anyone could have lived through the last 6 years and think there was a way to do this that didn’t involve some kind of pushback.

    Which is my point. The Administration should have been ready to go with a prepared response when the Republicans started with their BS. Instead, they looked like a deer in the headlights. How its that possible, after 6 years?

    Had Rice gone on tv and said nothing about him serving honorably, she’d be pilloried for disrespecting the troops. If she’d mentioned the desertion, she’d be condemned for blasting him without a trial.

    Simple. Don’t put “Benghazi” Rice on the Sunday shows . Put on some general with a chestful of medals talking about our “sacred duty” to “bring every last one home”. Just talk about Bergdahl as a soldier who volunteered to serve.
    You can’t stop Republicans from pushing back. But at least you can prepare properly for it.

    Like or Dislike: Thumb up 9 Thumb down 1

  31. michael reynolds says:

    Charles Krauthammer is backing Obama. Stanley McChrystal as well.

    Like or Dislike: Thumb up 8 Thumb down 0

  32. stonetools says:

    @JWH:

    Obama and his staff can predict, but can’t control, media and pundit reactions. But I think that in general, these sorts of things are best handled with a certain amount of modesty and decorum. This means taking care of things in a businesslike matter, NOT turning a simple prisoner exchange into a three-day dog-and-pony show.

    I agree with Beth that there would have been push back regardless, and that if there was an attempt to do it your way, there would have been just as much uproar, only it would be over the President’s “secret deal with terrorists in the dead of night”. There would have been plenty of “why is the President hiding this under a blanket rather than celebrating this in public”, etc. The point is to have a plan to deal with the pushback. The Administration clearly had none.

    Like or Dislike: Thumb up 3 Thumb down 0

  33. Surreal American says:

    @michael reynolds:

    Charles Krauthammer is backing Obama. Stanley McChrystal as well.

    Krauthammer is backing Obama…for now. At least until he feels the heat from the wingnut brethren urging him to get with the program.

    Like or Dislike: Thumb up 10 Thumb down 1

  34. Matt Bernius says:

    @michael reynolds:

    Charles Krauthammer is backing Obama.

    While I appreciate what you are saying, let’s be honest – given Krauthammer’s long history of being on the wrong side of issues, do you really want to tout the fact that he’s on “our side” on this particular issue?

    I mean, lets face it, chances are you’ll (rightly so) also be back to pointing out how wrong he usually is the next time he comes out against another Obama policy.

    Beyond that, I’m betting he’s on “Obama’s” side because he, generally speaking, is in favor of a powerful executive who thumbs his nose at laws that don’t work for him (see the hagiography of Putin or the defense of GWB/Cheney torture policies).

    TL:DR – welcome opponents when they agree, but don’t suddenly give them extra credit simply because they agree with us on a given issue.

    Like or Dislike: Thumb up 5 Thumb down 2

  35. Tillman says:

    When you take a step back, it’s pretty bad that Doug feels the need to write a post about why it’s bad to break the law. It’s even worse that the outcry has to come on the back of such a trivial, procedural law too, the effect of neglecting which is nothing more than to thumb the nose at Congress.

    Even if we accept the argument that this law was a bad law for some reason, or that it was in fact an unconstitutional infringement of the President’s powers and Commander in Chief, as unconvincing as that argument might be, the willful decision to ignore the law and then engage in legal and factual legerdemain to try to justify that after the fact.

    Meant to point this out earlier, but this isn’t a complete thought. Also, while we are a nation of laws, we shouldn’t be absolutist about enforcing all of our laws. You had a post just last week that could categorize with plenty of justification some laws as silly. I believe my contribution was the example of “illegal to whistle off-key.” Not saying this trivial, procedural part of a law was silly, but it certainly doesn’t merit the kind of outcry it’s getting.

    I also love how every “serious” commenter is having to point out that impeachment would be an overreaction, because that means there are wackos honestly considering impeachment!

    Like or Dislike: Thumb up 12 Thumb down 1

  36. Barry says:

    @Matt Bernius:

    “The biggest problem here is that people want to frame this in terms of the options being:
    a. Impeachment
    or
    b. Do nothing”

    Tell you what – when the right comes up with alternatives which are not batsh*t insane, I’ll be willing to discuss.

    Like or Dislike: Thumb up 10 Thumb down 0

  37. Matt Bernius says:

    @stonetools:

    Beware the “slippery slope” argument.

    I’m not making a slippery slope argument. I’m making a factual one.

    There is a pretty clear line that can be drawn from Obama’s ignoring of law — in the name of protecting Americans — to Bush’s ignoring of the law — in the name of protecting Americans.

    And the later case (torture) isn’t a hypothetical, its well established fact.

    Simply put, I don’t see how you can defend one President’s ability to circumvent the law in the name of a “timely, good cause,” without defending the other’s ability to circumvent the law in the name of a “timely, good cause.” Or pretend that the two are not inherently connected (especially given the parallels of the underlying arguments).

    Ultimately, the only difference is that *you* are ok with rescuing a hostage, but *not ok* with “enhanced interrogation methods” (to use the euphemism).

    Like or Dislike: Thumb up 6 Thumb down 4

  38. Barry says:

    @JWH: “And that’s it. No Rose Garden ceremony. No long speeches about Bergdahl being a hero. Just make it quiet and business like. If others wanted to make a big deal out of it, it should be on them, not on the White House. ”

    That wouldn’t have made any difference – the right would still have done a 180, and the ‘liberal media’ would have been equally negligant in calling them on it.

    Like or Dislike: Thumb up 10 Thumb down 0

  39. Barry says:

    @Matt Bernius: “There is a pretty clear line that can be drawn from Obama’s ignoring of law — in the name of protecting Americans — to Bush’s ignoring of the law — in the name of protecting Americans.”

    Damn, and here I thought that Obama was the current president, and Bush was the previous president.

    Like or Dislike: Thumb up 4 Thumb down 0

  40. Matt Bernius says:

    @Barry:

    Tell you what – when the right comes up with alternatives which are not batsh*t insane, I’ll be willing to discuss.

    Personally, I’m hoping the “left” will come up with some. If for no other reason, than it’s pretty certain that at some point in most of our lifetimes the same thing will happen again under a Republican president.

    And I’d love if when that happens the left can put forward a better answer than “Impeach Him!”

    Like or Dislike: Thumb up 4 Thumb down 1

  41. al-Ameda says:

    Conor Friedersdorf seems somewhat out of touch:

    Impeachment would be a wild, irresponsible overreaction to Obama’s unlawful prisoner swap. But neither can Congress afford to let the executive branch defy it with impunity, so some lesser step to remove the incentive for future lawlessness would be welcome.

    I’m not sure if he knows this, or if he intentionally omitted it, but, the Republican Party ACTUALLY IS the party of “wild, irresponsible overreaction.”

    Frankly, the Administration should let the Republican Party sue, and see where this goes. In the meantime perhaps Darrell Issa can run yet another interminable investigation.

    Like or Dislike: Thumb up 8 Thumb down 0

  42. Jeremy R says:

    What a difference a week of consuming right-wing media makes. Here’s Doug just shy of a week ago:

    [I]t’s unclear what the penalty might be for failure to comply with the 30 day notice requirement other than giving Congress the ability to air a legitimate complaint.

    As to the broader issue, though, it strikes me that it’s going to be hard for the GOP to come out of a real battle with the President over this looking good, if that’s what they choose to do here. Yes, it’s true that we have “negotiated with terrorists” to ensure the release of an American Prisoner of War, but it’s not as if we haven’t done that before. President Reagan did it on several occasions as part of the efforts to ensure the release of the Americans and others who were kidnapped in Lebanon back in the 1980s and, indeed, went so far as to engage in secret diplomatic negotiations with Iran to advance those discussions. But what else were he and President Obama supposed to do? In both cases, rescue seemed to be unlikely due to where the men in question were being held. So, if you want to get the prisoner out alive, you have to talk to the people holding them. Yes, we’re admittedly taking a risk in releasing these five men from Guantanamo, but prisoner exchanges have been a part of war since time immemorial, why is it such a bad thing this time?

    On a final note, I guess I’d just have to wonder what these Republicans would say to Sgt. Bergdahl’s parents.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 0

  43. James Pearce says:

    @Ron Beasley:

    This is the sort of thing that happens when you have a dysfunctional congress.

    Exactly. Rule of law or no, I will never shed a tear over “congressional notification.”

    I’m slowly becoming of the mind that the only reason to bring something to Congress is to make sure that it never occurs.

    Like or Dislike: Thumb up 9 Thumb down 0

  44. EddieInCA says:

    @Matt Bernius:

    Forgive me if I’m missing something, but to me there is something hugely different between Bush ignoring decades of US Law and actually condoning actions that we prosecuted others for…

    …and Obama failing to secure a 30 day notice for Congress to do a prisoner swap towards the end of a war (which have been done for over 200 years.)

    Are you claiming that the two are morally equivalent? Or legally equivalent?

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 1

  45. beth says:

    @Matt Bernius: Well two solutions would be to stop writing bills with poison pill “gotcha” clauses written into them and for some Presidents (including this one) to grow a pair and start vetoing bills that do contain them. If you want to fund the military, fine. If you want to keep the President from transferring prisoners, fine. One has nothing to do with the other, so deal with it in two different bills (you can address the funding of transfers in that transfer bill). Of course that would require a little courage on the part of our politicians and some real journalism out of our media so I hold out little hope of it happening.

    Like or Dislike: Thumb up 11 Thumb down 0

  46. Jeremy R says:

    http://m.apnews.com/ap/db_289563/contentdetail.htm?contentguid=wabdXUmI

    Sen. Angus King, an independent from Maine, told CNN concerning the situation prior to the exchange: “They had intelligence that, had even the fact of these discussions leaked out, there was a reasonable chance Bowe Bergdahl would have been killed.”

    Like or Dislike: Thumb up 9 Thumb down 0

  47. Just Another Ex-Republican says:

    Actually the difference would be that torture (under whatever euphemism) has been shown over and over again to be ineffective as well as immoral, more likely to lead to bad intelligence than standard interrogation techniques, and a “ticking time bomb” torture situation has never happened outside the imaginations of authors of fiction. Whereas prisoner exchanges have been negotiated successfully in secret for centuries.

    In other words, the “timely, good cause” reason is a complete red herring in the case of torture, but actually applies when it comes to prisoner exchanges.

    Like or Dislike: Thumb up 13 Thumb down 0

  48. beth says:

    @Jeremy R:

    On a final note, I guess I’d just have to wonder what these Republicans would say to Sgt. Bergdahl’s parents.

    You don’t have to guess. What they’ve been saying is your son’s a deserter, and shave that beard, you look like a damn Muslim. Oh, and all those prayers we offered for his safe return? We call do-over on them.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 0

  49. James Pearce says:

    @Jeremy R:

    “They had intelligence that, had even the fact of these discussions leaked out, there was a reasonable chance Bowe Bergdahl would have been killed.”

    Judging from what I’ve seen on Facebook, I think about half the people in this country would really like to see Bowe Bergdahl killed.

    Like or Dislike: Thumb up 9 Thumb down 0

  50. C. Clavin says:

    @Another Mike:

    Here’s the thing Doug, how can a president who refuses to be bound by the law be bound by your change in the law to reign him in? All that congress can do to control a rogue president is to impeach him.

    More silliness.
    The law is unconstitutional…at least according to Obama and his legal team. Hence the signing statement…a thing which Obama has used sparingly in comparison.
    Only Congress has the standing to sue the Executive over this. I doubt they will because SCOTUS is hesitant to get involved between branches. At least they have been in the past…but the Roberts court is so f’ed up that who knows?
    But regardless…this isn’t about the law. This about politics. If a Republican did the same thing Republicans would be applauding. And Democrats would grumble and go on their way.
    The war is over. We have to get rid of the POW’s we are holding and get ours back. It has been so forever. The only thing that has changed is a Republican party bent on fomenting anger and haterd.

    Like or Dislike: Thumb up 10 Thumb down 0

  51. stonetools says:

    @Matt Bernius:

    Ultimately, the only difference is that *you* are ok with rescuing a hostage, but *not ok* with “enhanced interrogation methods” (to use the euphemism).

    Actually, I’m OK with that . I do think there is a difference between rescuing a hostage and “enhanced interrogation” . THe difference seems clear to me. One is justifiable as a matter of public policy and shared values, and one is not.
    The point is that every exception to the law has to be argued and justified on its own terms. Your point ( and Doug’s) seems to be that there can NEVER be any justification for breaking the law, or else the law “means nothing” and will be broken with impunity in future.That sounds “slippery slope-y” to me.

    Like or Dislike: Thumb up 7 Thumb down 0

  52. wr says:

    @Matt Bernius: “Ultimately, the only difference is that *you* are ok with rescuing a hostage, but *not ok* with “enhanced interrogation methods” (to use the euphemism).”

    Um, yeah. I’m also ok with double parking to help an injured person into an emergency room, but I’m not okay with shooting all the patients in front of us on line to make sure we get served first.

    If you believe that every law is every bit as sacred as every other law…

    Like or Dislike: Thumb up 14 Thumb down 0

  53. C. Clavin says:

    @Matt Bernius:
    Yeah…I found Krauthammers comment interesting but ultimately as meaningless as everything else he says .

    Like or Dislike: Thumb up 2 Thumb down 1

  54. Gavrilo says:

    It’s worth noting that the only reason Congress placed restrictions on the transfer of prisoners from Guantanamo Bay was because President Obama and AG Holder had the monumentally stupid idea of trying Khalid Sheikh Mohammad in downtown Manhattan.

    Poorly-rated. Helpful or Unhelpful: Thumb up 3 Thumb down 19

  55. Pinky says:

    @michael reynolds:

    1) If the Congress is being ignored it’s because they’ve spent decades ceding their Constitutional authority. The exercise of power would require them to accept responsibility. They refuse. They have in effect abdicated.

    Yeah, I feel that way about my dead wife. She knew how I get when I’m drinking. If she wanted to leave me, she could have. What happened was as much her fault as it was mine.

    Like or Dislike: Thumb up 1 Thumb down 10

  56. C. Clavin says:

    @Gavrilo:
    It was only a stupid idea if you have no faith in our justice system.
    Why do you hate America so much?
    And why don’t you just leave?

    Like or Dislike: Thumb up 14 Thumb down 3

  57. C. Clavin says:

    @Pinky:
    I was going to say that, based on your analogy, Congress is a ugly bitch that married an idiot.
    The I decided not to.

    Like or Dislike: Thumb up 3 Thumb down 6

  58. Rafer Janders says:

    @Another Mike:

    Unless President Obama does something that is so egregious that his own party in the senate abandons him, he cannot be removed from office.

    Yes, but what, what? What could Obama do that would be egregious that Democrats would abandon him?

    I mean, sure, maybe if he did something so appalling, so irresponsible as to fall asleep at the switch and let through the most devastating terrorist attack in American history, or lose an entire city to a hurricane, or attack and invade a sovereign nation for no good reason whatsoever, or let the most wanted terrorist in the world escape and then do nothing to catch him, or set up a worldwide network of secret kidnap and torture camps, or steer the American economy into the worst economic crisis in 80 years, then of course, Congress would have to impeach. It would have no choice. Even those of the president’s own party couldn’t be so blind to their patriotic duty that they’d let stuff like that just go by.

    Like or Dislike: Thumb up 14 Thumb down 0

  59. Rafer Janders says:

    @Gavrilo:

    Yes, with Khalid Sheik Mohammed’s superhuman strength, invulnerability to bullets, and ability to fly and to shoot laser bolts from his eyes, there’s no way we could have contained him in downtown Manhattan.

    Highly-rated. Helpful or Unhelpful: Thumb up 25 Thumb down 1

  60. Rafer Janders says:

    @Matt Bernius:

    Ultimately, the only difference is that *you* are ok with rescuing a hostage, but *not ok* with “enhanced interrogation methods” (to use the euphemism).

    Um, yes. I’m also OK with stealing a loaf of bread to feed a starving child, but not OK with robbing a bank in order to fund my terrorist group’s weapons purchases.

    Jesus, Matt, false equivalence much?

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  61. stonetools says:

    From the NYT:

    The proof of Sergeant Bergdahl’s condition came soon after, when the Taliban produced a short video clip of the soldier. In the video, believed to be shot sometime in December, Sergeant Bergdahl made references to recent events — including the death of former South African president Nelson Mandela — but he appeared sick and weak.

    “He looked shriveled,” said one senior American official who saw portions of the video. “There was a pallor about his skin that looked unhealthy. He didn’t seem alert; he seemed lethargic.”

    Several teams of military medical specialists analyzed the video and wrote a report concluding that, among other things, the American prisoner was undernourished and was cradling one arm in another.

    One Defense Department official said that the Taliban had also expressed concerns about Sergeant Bergdahl’s health, worried that his death would eliminate any leverage they had to secure the release of the prisoners at Guantánamo Bay.

    The video reinforced growing fears within military circles that the chances of freeing the American prisoner would become more difficult at the end of 2014, when the number of United States troops was scheduled to shrink significantly. As American troops pulled out, so would specialists from the C.I.A. and other intelligence agencies who were vital to helping find the soldier.
    But negotiations lagged for several months.

    “For a while the Taliban went silent, and we thought the whole thing was another bust,” one American official said.

    But by mid-May, the United States and Qatar had signed a secret memorandum, with Qatar agreeing to impose security provisions for the five Taliban detainees. The memorandum called for a minimum one-year travel ban on the Afghans. Other details have been kept secret.

    Even after the agreement was in place, the Obama administration chose to keep Congress in the dark about the secret negotiations. In recent days, White House officials have said that any leak about a possible prisoner trade could have once again scared off the Taliban.

    “We didn’t have 30 days,” Denis R. McDonough, the White House chief of staff, said Monday, stepping around the question of whether they could have notified some in Congress two or three weeks ago.

    If all this proves out,I’m comfortable with Obama’s decision, threat of an imperial presidency be damned. I find plenty of exigent circumstances justifying a decision to keep Congress -especially THIS Congress-in the dark.

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  62. Rafer Janders says:

    @Matt Bernius:

    Simply put, I don’t see how you can defend one President’s ability to circumvent the law in the name of a “timely, good cause,” without defending the other’s ability to circumvent the law in the name of a “timely, good cause.”

    Because one of them was not actually a timely, good cause.

    Like or Dislike: Thumb up 13 Thumb down 2

  63. Matt Bernius says:

    @EddieInCA:

    Are you claiming that [torture and this prisoner release] are morally equivalent? Or legally equivalent?

    Morally equivalent? No. I thought I clearly stated that above.
    Legally equivalent? Yes – in terms that both rely on the same alleged precedent. Hence why one helps justify the other and visa versa (and why folks like Krauthammer and others are supporting the administration).

    @stonetools:

    One is justifiable as a matter of public policy and shared values, and one is not.

    Whose shared values? I’m pretty sure if you polled the majority of Americans in the wake of 9/11, the majority would have had no problems with limited enhanced interrogation* (in fact at least one poll bears that out – http://www.washingtonpost.com/wp-dyn/content/article/2009/05/17/AR2009051702248.html)

    Your point ( and Doug’s) seems to be that there can NEVER be any justification for breaking the law, or else the law “means nothing” and will be broken with impunity in future.That sounds “slippery slope-y” to me.

    The issue that I think we both are trying to express, along with Connor (who was equally against Torture), is that each time a law like this is broken, it creates further precedent for future breaks (and helps justify breaks that have happened in the past).

    My further point is, if you are going to break the law, seriously consider *how* your justification is different than the last guy who did the same thing. Because you’re helping build up that precedent by defending said act.

    You can’t rail against the growing executive power (which plenty of folks did under Bush/Cheney) and then happily defend the further growth of executive power under “your side” because you like the results.

    The fact is, both Obama and Bush used the same basic rationale to justify their actions. And a lot of people’s defense of Obama mainly comes from the fact that they keep saying over-and-over again “well our guy was actually justified — whereas the other guy, he wasn’t really justified.”

    Like or Dislike: Thumb up 6 Thumb down 1

  64. Gavrilo says:

    @Rafer Janders:

    You think the vast majority of Americans opposed a civilian trial in NYC because they thought KSM would escape?

    That’s what you think? For real?

    Like or Dislike: Thumb up 0 Thumb down 11

  65. gVOR08 says:

    @michael reynolds: Jeez. I though Obama did the right thing. But if Krauthammer agrees…

    Like or Dislike: Thumb up 12 Thumb down 0

  66. Rafer Janders says:

    @Gavrilo:

    Um, for what reason, then? Federal prosecutors have successfully convicted over 400 people of terrorism-related charges since September 11, 2001, largely in the Southern District of New York in Manhattan.

    In Guantanamo, by contrast, the number of successful military tribunal terrorist prosecutions since that date is….seven.

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  67. JWH says:

    @Barry:

    That wouldn’t have made any difference – the right would still have done a 180, and the ‘liberal media’ would have been equally negligant in calling them on it.

    Completely irrelevant to my point. The reason to do it quietly is not to avoid the reaction from the right, but to, as much as possible, keep the matter simple for the president’s office and not take an unearned victory lap. I think Mikey got it right above:

    Indeed. There are times to jump up and yell “LOOK HOW AWESOME I AM!” This…was not one.

    Like or Dislike: Thumb up 1 Thumb down 2

  68. C. Clavin says:

    There is an AP report out that says the Taliban had threatened to kill Bergdahl if the deal became public before it was done. This according to three Congressional officials briefed by the Administration. The threat was made at the height of the negotiations.
    Apparently this is what Hagel meant when he said, “…there was a question about his safety…”

    So how many of you wing-nuts are willing to change your mind when confronted with…you know…facts? How many of you rabid partisans are willing to admit that Congress couldn’t keep this secret…even if they had to in order to save Bergdahls life?

    Like or Dislike: Thumb up 10 Thumb down 1

  69. Rafer Janders says:

    @Matt Bernius:

    And a lot of people’s defense of Obama mainly comes from the fact that they keep saying over-and-over again “well our guy was actually justified — whereas the other guy, he wasn’t really justified.”

    Which is a morally and ethically valid argument to make. You can, in fact, distinguish between cases. You can argue that, for example, lying to the Hutu militia so that they won’t find the Tutsi hiding in your house is actually justified, but lying to the Tutsi to convince him to hide in your house when your real intention is to turn him over to the Hutu militia to be slaughtered is not. They’re both lying, but one is for a good cause and one is not.

    Like or Dislike: Thumb up 12 Thumb down 1

  70. Rafer Janders says:

    @Gavrilo:

    You think the vast majority of Americans opposed a civilian trial in NYC because they thought KSM would escape?

    OK, genius, convince me. Why not, then? And keep in mind that you’re talking to a New Yorker who works downtown within sight of the WTC and volunteered there in the days after 9/11.

    Like or Dislike: Thumb up 14 Thumb down 0

  71. Matt Bernius says:

    @Rafer Janders:
    I understand what you are trying to say, but I think you and others are drawing a far brighter line between my two cases then there actually was.

    Perhaps I’m being naive, but I’m willing to take it on faith that the primary intention of waterboarding was to get actionable intelligence because people *really believed* that there were secondary attacks imminent. Last I remember (again I could have this wrong), there is evidence to back up this viewpoint. (I think it’s worth remembering how collectively crazed we were as a culture then)

    So it’s entirely possible that the Bush administration at the time was acting in *good faith* — out of a true belief that there was a timely, actual danger to American lives (again, nearly 3000 people had just been killed in a matter of a few hours in multiple sites).

    It could be that I’m just daft, but I think it’s pretty easy to get from “I choose to circumvent the law in the hopes of rescuing one person to I choose to circumvent the law in the hopes of protecting a city.”

    BTW, NONE OF THE ABOVE IS AN ATTEMPT TO JUSTIFY TORTURE!

    Nor am I using the fact that polls suggest a majority of Americans were in favor of enhanced interrogation at the time.

    Like or Dislike: Thumb up 5 Thumb down 3

  72. Surreal American says:

    @C. Clavin:

    It was only a stupid idea if you have no faith in our justice system.

    Why do you hate America so much?

    And why don’t you just leave?

    Hopefully Gavrilo answers the second question first.

    Like or Dislike: Thumb up 5 Thumb down 0

  73. stonetools says:

    @JWH:

    The reason to do it quietly is not to avoid the reaction from the right, but to, as much as possible, keep the matter simple for the president’s office and not take an unearned victory lap

    I know its been obscured by all the BS, but saving the life of an American citizen and soldier is actually a good thing and is a well earned victory that deserves more than being silently ignored. That’s so even if the soldier isn’t Audie Murphy.

    Like or Dislike: Thumb up 9 Thumb down 0

  74. Rafer Janders says:

    @Matt Bernius:

    So it’s entirely possible that the Bush administration at the time was acting in *good faith*

    It’s not at all possible.

    Like or Dislike: Thumb up 9 Thumb down 7

  75. C. Clavin says:
  76. Blue Galangal says:

    @Another Mike: REIN. It’s “REIN IN.” For the love of God.

    Like or Dislike: Thumb up 2 Thumb down 0

  77. James Pearce says:

    @Matt Bernius:

    And a lot of people’s defense of Obama mainly comes from the fact that they keep saying over-and-over again “well our guy was actually justified — whereas the other guy, he wasn’t really justified.”

    I think this is mostly due to the framing.

    Cut through the bullshit, and “a lot of people’s defense of Obama” hinges on other things. The mistake you’re making is thinking that if a person supports Obama’s disregard of the law to free Bergdahl, then they also support the powerful executive breaking the law generally.

    That wasn’t true of Bush supporters and torture, and it’s not true now.

    Like or Dislike: Thumb up 6 Thumb down 1

  78. C. Clavin says:

    @Matt Bernius:

    So it’s entirely possible that the Bush administration at the time was acting in *good faith* — out of a true belief that there was a timely, actual danger to American lives

    I might believe that if they hadn’t tortured Khalid Sheikh Mohammed 183 times. That’s hardly “timely”.

    Like or Dislike: Thumb up 11 Thumb down 0

  79. stonetools says:

    @Matt Bernius:

    It could be that I’m just daft, but I think it’s pretty easy to get from “I choose to circumvent the law in the hopes of rescuing one person to I choose to circumvent the law in the hopes of protecting a city.”

    Ypou may think it easy, but you still have to justify each with reasoned argument and evidence. It’s not clear there is yet a justification for keeping Congress in the dark in the Berdahl’ s case.

    The evidence is clear that thecase for enhanced interrogation was unjustified.
    Your problem is that you want to draw a blight line for every case. You can’t really. You have to look at each case on its facts.

    Like or Dislike: Thumb up 2 Thumb down 0

  80. Matt Bernius says:

    First off, it’s clear I’m not making my point. So I’m going to take a pause and do some thinking about what I’m saying rather than dragging this out.

    That said
    @James Pearce:

    Cut through the bullshit, and “a lot of people’s defense of Obama” hinges on other things. The mistake you’re making is thinking that if a person supports Obama’s disregard of the law to free Bergdahl, then they also support the powerful executive breaking the law generally.

    I’ll be honest, my concern is that this is *entirely the problem* that I see. I think a lot of people support Obama’s disregard for the law because they *support Obama and his agenda.* And I think those people will almost always support a powerful executive breaking the law when he/she is on their side.

    I personally think this sort of thing is a dangerous precident.

    This, btw, is the hypocrisy I see in all of the right wingers who suddenly object to Obama’s actions on some sort of moral/legal ground.

    Say what you want about Krauthammer for example, but at least he’s staying ideologically consistent. Likewise, it’s worth noting that Connor F. was as concerned about executive overreach under Bush as he is under Obama.

    Like or Dislike: Thumb up 5 Thumb down 0

  81. Matt Bernius says:

    @C. Clavin:

    I might believe that if they hadn’t tortured Khalid Sheikh Mohammed 183 times. That’s hardly “timely”.

    1. I do not believe in “enhanced interrogation/torture” and it is not my intent to offer a defense of the action.

    2. I do believe that the actors involved at the start *could* have truly believed there was a time based need (this does not justify their actions)

    3. It’s also entirely possible to start with one intent in mind and to quickly shift to another (starting with getting intel at all costs and quickly devolve into torture for torture’s sake… this is one of the many reasons why we *shouldn’t* torture)

    Anyway, I’m off to reconsider my position.

    Like or Dislike: Thumb up 4 Thumb down 0

  82. C. Clavin says:

    @Matt Bernius:

    I think a lot of people support Obama’s disregard for the law because they *support Obama and his agenda.*

    Think about this on your “time-out”.
    Sure I support Obama.
    However:
    1). This is an action with over two hundred years of precedent. Prisoner exchanges have been going on forever.
    2). This law is most likely, as the signing statement says, unconstitutional.
    3). According to the latest reporting the Taliban had threatened Bergdahl’s life if the deal became public.
    Your playing Doug’s BOTH SIDES DO IT game…which is a stupid meaningless game.
    Just because Republicans raise a stink doesn’t mean they have a point. Just because they believe in Creationism or deny Climate Change it doesn’t make those valid points of view. And my not recognizing them as valid points of view does not make me a blind partisan routing for my team.

    Like or Dislike: Thumb up 6 Thumb down 1

  83. C. Clavin says:

    @Matt Bernius:
    We can agree to disagree. I know you are not supporting torture. I think Cheney is a coward and was so freaked out by 9.11 that he would have done, and did do, anything he could think of to make sure he didn’t fvck up again. He had built his entire persona on being this Nat’l Security expert…and he let us get attacked on our own soil on his watch. And the rest is history.

    Like or Dislike: Thumb up 8 Thumb down 1

  84. James Pearce says:

    @Matt Bernius:

    Say what you want about Krauthammer for example, but at least he’s staying ideologically consistent. Likewise, it’s worth noting that Connor F. was as concerned about executive overreach under Bush as he is under Obama.

    This probably explains why those two are so often wrong on various issues. They do not have the flexibility of thought that is the true hallmark of rational people.

    Don’t get me wrong. Principles are important. But sometimes they conflict and cannot be reconciled.

    For instance, I think the president should follow the law. But I also think that unjust laws exist and the president should ignore those. The “ideological computer” has problems with this one. Smoke starts coming out of its ears and it starts saying, “Does not compute, does not compute.” On the other hand, “the thinking brain” is able to more easily able to sort through this kind of complexity. It orders things by preference. “Follow the law, yes, but not the dumb ones.”

    What you dismiss as hypocrisy is actually “thinking people” revealing this order of preference.

    And that’s as true for Bush/torture as it is for Obama/Bergdahl.

    Like or Dislike: Thumb up 7 Thumb down 0

  85. stonetools says:

    @Matt Bernius:

    I’ll be honest, my concern is that this is *entirely the problem* that I see. I think a lot of people support Obama’s disregard for the law because they *support Obama and his agenda.* And I think those people will almost always support a powerful executive breaking the law when he/she is on their side.

    FWIW, I’d support a Republican president if he supplied adequate justification that he needed to keep Congress in the dark in order to ensure the safe return of an American POW.And I’d oppose a Democratic President who propounded a policy of “enhanced interrogation”, absent sufficient justification( which would of course have to be extraordinary).

    I personally think this sort of thing is a dangerous precident.

    There’s a difference between setting a precedent and recognizing a justified exception to a general rule.

    Like or Dislike: Thumb up 5 Thumb down 0

  86. Grewgills says:

    @C. Clavin:
    Seriously man? I don’t agree with Pinky’s analogy, but your comment was odious.

    Like or Dislike: Thumb up 4 Thumb down 0

  87. Mikey says:

    @James Pearce:

    But I also think that unjust laws exist and the president should ignore those. On the other hand, “the thinking brain” is able to more easily able to sort through this kind of complexity. It orders things by preference. “Follow the law, yes, but not the dumb ones.”

    The problem with that way of thinking is it creates a “rule by man, not of law” situation. What one man considers unjust, another considers just, and predictability and consistency–two hallmarks of a proper, functioning legal framework–go straight down the crapper.

    I believe the President’s justification in this case isn’t that the law in question was a “dumb one,” but rather that it was an unconstitutional breach of the separation of powers and he was correct to choose to exercise the executive power. Not “rule by man,” but rule consistent with the Constitution.

    Like or Dislike: Thumb up 6 Thumb down 0

  88. Tillman says:

    Am I the only one who gets the idea the lefty commenters are unusually defensive on this?

    Obama’s administration broke the law. The law was dumb. The law was pretty inconsequential. The law was, however, duly enacted legislation of the Congress of the United States. They used similar justifications as the last president to do so. “The law was inconvenient to the circumstances.” “Making the information about our activities public would jeopardize them.”

    These are not excuses to be defended. Contextualized, sure. This is peanuts compared to the shenanigans of the Bush tenure. And as long as that’s what you’re doing, it’s fine. Just recognize that despite this exonerating context, the next president will use the exact same arguments when s/he does something off. S/he’ll be able to point to Bush and Obama as precedents no matter how wrong the context is, and the majority of people will shrug. If context mattered to the ordinary voter, do you honestly think we’d have the representatives we have now?

    Like or Dislike: Thumb up 12 Thumb down 0

  89. C. Clavin says:

    @Grewgills:
    I had to look up odious.
    C’mon man…it was a joke!!!

    Like or Dislike: Thumb up 0 Thumb down 3

  90. Tillman says:

    @James Pearce:

    What you dismiss as hypocrisy is actually “thinking people” revealing this order of preference.

    Yes, their order of preference. Or are you suggesting that all rational thinking people reach the same conclusions? The complexity of the world doesn’t allow for this, which is why we even have hard, fast rules like “don’t break the law.”

    Much as I like the thinking man, he’s not always right about what he thinks.

    Like or Dislike: Thumb up 2 Thumb down 0

  91. Tillman says:

    @stonetools:

    There’s a difference between setting a precedent and recognizing a justified exception to a general rule.

    No, there isn’t. Recognizing a justified exception to a general rule establishes that exception as a precedent.

    Like or Dislike: Thumb up 2 Thumb down 1

  92. @Matt Bernius:

    Forget it, Jake. It’s Chinatown.

    Like or Dislike: Thumb up 2 Thumb down 0

  93. PD Shaw says:

    @Matt Bernius: ‘the defense of GWB/Cheney torture policies”

    A good time to revisit the curious history of the torture memo, and how it became the law of the land, and how nobody cared.

    Judge Bybee wrote the legal memorandum for the Department of Justice that interpreted the term “torture” in the anti-torture statute. Bybee had noted ambiguities in the statute (physical pain and suffering is alright unless it becomes “severe”) and limitations on the state of mind of the perpetrator (“specific intent”), which provided guidance for how waterboarding could be used for interrogation purposes without being “torture.” Before the final version of the Bybee memo had been signed, however, a draft was used by another DOJ attorney to defend an order of deportation of a Haitian, who sought amnesty because he would be tortured upon his return to Haiti. In 2002, an immigration court in a case call In re J-E- adopted the interpretation of “torture” from the Bybee memo without presumably knowing the origin of that interpretation.

    By 2004 reports of torture at Abu Ghraib drew attention to the issue, which ultimately led to the release and public awareness of the Bybee memo. But by that time, the DOJ had already rescinded the Bybee memo as incorrect, particularly as to the “specific intent” element. Nonetheless, immigration courts were still using the Bybee interpretation, but calling it the In re J-E- precedent.

    In 2008, the Third Circuit Court of Appeals addressed another Haitian amnesty petition and ten justices fully adopted the J-E- precedent as its own. However, three justices (who I believe were clued into the real origins of the “torture” interpretation by anti-war law professors) pointed out that the J-E- precedent was actually the Bybee Memo that had been repudiated by the DOJ and its interpretation should be jettisoned by the court system as well. The three justices offered this hypothetical:

    A military official in Haiti desires information from a detained, suspected terrorist. His purpose in interrogating the detainee is to solicit information. In the course of the interrogation, he begins to use coercive tactics. The official’s only purpose and conscious desire is to receive information. He is indifferent as to whether his tactics (electric shock) cause severe pain and suffering; indeed, he had hoped that the detainee would give him information without the infliction of pain and suffering. The shock treatment is administered and does cause severe pain and suffering.

    Under the majority’s opinion the three justices complained, the military official in Haiti is not engaged in “torture,” nor might I add would it be “torture” if we replaced the words “Haiti” with “the U.S.” and “electric shock” with “waterboarding.” By most measures, the Third Circuit is a moderate circuit. As of today, the J-E- precedent has been cited 79 times in the various Courts of Appeal. Bybee’s legal memo was too controversial for the political system, but it was entirely acceptable in the court system. Congress hasn’t amended it.

    Like or Dislike: Thumb up 6 Thumb down 0

  94. Mikey says:

    @PD Shaw:

    In 2002, an immigration court in a case call In re J-E- adopted the interpretation of “torture” from the Bybee memo without presumably knowing the origin of that interpretation.

    By 2004 reports of torture at Abu Ghraib drew attention to the issue, which ultimately led to the release and public awareness of the Bybee memo. But by that time, the DOJ had already rescinded the Bybee memo as incorrect, particularly as to the “specific intent” element. Nonetheless, immigration courts were still using the Bybee interpretation, but calling it the In re J-E- precedent.

    Wow…that’s just appallingly circular.

    Like or Dislike: Thumb up 2 Thumb down 0

  95. C. Clavin says:

    @Tillman:
    I think you only have to look at the “bring home our POW at any cost”…”the treasonous President is appeasing the terrorists again” about face to understand any defensiveness there might be.
    In my mind the difference between ignoring a 30 day notification of Congress when a soldiers life is in imminent danger and committing 183 incidents of torture on one man in a month is easily discernible.

    Like or Dislike: Thumb up 6 Thumb down 0

  96. stonetools says:

    @Tillman:

    No, there isn’t. Recognizing a justified exception to a general rule establishes that exception as a precedent.

    Er, no it doesn’t. If I steal a loaf of bread to feed a starving child, that doesn’t mean that everyone can now disregard the law of theft.

    Like or Dislike: Thumb up 5 Thumb down 1

  97. DrDaveT says:

    @Tillman:

    These are not excuses to be defended. Contextualized, sure. This is peanuts compared to the shenanigans of the Bush tenure

    That’s pretty much the point I was trying to make.

    Responsible adults will do the right thing, regardless of what the law says. If they end up in court, they are free to defend their actions or not, as they choose. And if the law bites them on the ass, they take their medicine like adults. They or others may choose to use this to agitate for changes in the law.

    That “taking their medicine” part is the key, because it allows us to clearly distinguish trampling on a technicality of Executive/Legislative prerogative from torturing prisoners. If you’re willing to stand trial as a war criminal, you presumably feel you have a pretty good justification for your actions.

    Like or Dislike: Thumb up 9 Thumb down 0

  98. Tillman says:

    @stonetools: Legally, sure. Thievery is against the law even if you’re feeding starving kids with stolen food, but morally it is acceptable. Therefore a moral precedent, if not a legal one.

    But it’s not as if morals were ever legislated…

    Like or Dislike: Thumb up 3 Thumb down 0

  99. Tillman says:

    @DrDaveT:

    Responsible adults will do the right thing, regardless of what the law says. If they end up in court, they are free to defend their actions or not, as they choose. And if the law bites them on the ass, they take their medicine like adults. They or others may choose to use this to agitate for changes in the law.

    That “taking their medicine” part is the key, because it allows us to clearly distinguish trampling on a technicality of Executive/Legislative prerogative from torturing prisoners.

    Exactly. And I understand Clavin’s frustration all too well, since the people who are really taking the president to task are the worst people to do so. I support them taking him to task if only to show how ridiculous the law was to begin with, but that acknowledges a law was broken and this is something meaningful despite how trivial the law was.

    I mean, come on, is there an honest need for a month-long buffer between notifying Congress and carrying out an exchange in the age of instant communication we live in?

    Like or Dislike: Thumb up 4 Thumb down 1

  100. Rafer Janders says:

    @Tillman:

    Recognizing a justified exception to a general rule establishes that exception as a precedent.

    It establishes a justified exception as precedent, but it doesn’t destroy the general rule or allow any exception without justification.

    As an example, I can’t kill anyone is the general rule. I can, however, kill someone if they’re trying to murder my wife and killing them is necessary to defend her. We can recognize a self-defense justified exception without appreciably weakening the general applicability of the laws against homicide. Common law has always, in fact, recognized exceptions to laws of general conduct when that exception is necessary in order to save an imminently threatened life.

    Like or Dislike: Thumb up 9 Thumb down 0

  101. James Pearce says:

    @Tillman:

    Yes, their order of preference. Or are you suggesting that all rational thinking people reach the same conclusions?

    The former.

    That said, this should not be mistaken for pro/con argument for the rightness/wrongness of Bush/Obama’s legal transgressions. This is an argument for why “hypocrisy” is a misdiagnosis.

    Also:

    Recognizing a justified exception to a general rule establishes that exception as a precedent.

    Only if the rule stands. Usually, “recognizing a justified exception to a general rule” exposes that the rule needs to be amended or changed. The precedent will only be established if the rule stays the same.

    Like or Dislike: Thumb up 1 Thumb down 0

  102. Rafer Janders says:

    @Rafer Janders:

    And one of the differences between that and Matt’s torture hypo is that in Bergdahl’s case, the exception is narrowly tailored to save a specifically named life within a narrow timeframe, whereas in the torture case, the exception is supposedly necessary in order to save an amorphous and unknown number of lives in an unknown timeframe. We look skeptically at the second case because we know how easy it can be to abuse that excuse, whereas the first case can be evaluated on its own specific merits.

    Like or Dislike: Thumb up 6 Thumb down 0

  103. Another Mike says:

    @Rafer Janders: So why didn’t theDemocrats impeach President Bush in the two years they held congress? Because among other reasons, your points are all bogus when you delve into them. Sounds like they are right from MSNBC.

    Like or Dislike: Thumb up 2 Thumb down 13

  104. Tillman says:

    @Rafer Janders: If all of this were taking place in a court of law, you’d be perfectly right. But we’re in the political realm, with electorates that have two-year memories, who are increasingly not reading past the headlines.

    Again, guys, the context is clear that Obama was ignoring a trivial law while Bush ignored a law that led to grievous and unnecessary harm. But no one besides maybe a plurality of political junkies will know of or understand that context. The rest of us will just see an “I did what I had to do” moment. And the next president will be able to pull it off easier no matter how weak his or her justification is. Again, if the average voter paid attention to the contexts throughout our politics, do you think we’d have the representation in Congress that we do now?

    Like or Dislike: Thumb up 4 Thumb down 0

  105. PD Shaw says:

    @Mikey: One of the complaints about “torture” is that its use spreads. Here the legal justification developed in one ecosystem and withered, but before then the seeds were planted in the immigration ecosystem, where an active court system quickly produced dozens of plants, which produced hundreds more in time.

    Like or Dislike: Thumb up 3 Thumb down 0

  106. Orange says:

    Such a sad state of affairs. How many friends does Obama have in the South? No, really? :-)

    The next couple of years promise to continue to be tough. Good for Fix News. :-)

    Like or Dislike: Thumb up 0 Thumb down 0

  107. michael reynolds says:

    @Matt Bernius:
    Krauthammer is a clown, but his presence on ‘my’ side is useful in confusing opponents.

    Like or Dislike: Thumb up 4 Thumb down 3

  108. wr says:

    @Matt Bernius: “I’ll be honest, my concern is that this is *entirely the problem* that I see. I think a lot of people support Obama’s disregard for the law because they *support Obama and his agenda.* And I think those people will almost always support a powerful executive breaking the law when he/she is on their side.”

    And here, I think, is where the disconnect comes in. I do not believe that most of the people supporting Obama’s decision to break this law do so because they “support Obama and his agenda.” Speaking at least for myself, although in general an Obama supporter, I do so because I believe it was a stupid law with no purpose other than craven petty politics, and when that is weighed against the life of this American soldier it would be immoral to follow it. It would be like seeing a child about to fall from a high window when you were driving past and refusing to do anything about it because the curb was painted red so there was no place to park.

    Most people don’t think of The Law as an abstract principle. We think of individual laws. That is what’s happening here.

    Like or Dislike: Thumb up 7 Thumb down 0

  109. wr says:

    @James Pearce: “This probably explains why those two are so often wrong on various issues. They do not have the flexibility of thought that is the true hallmark of rational people.”

    “A foolish consistency is the hobgoblin of little minds.”

    Like or Dislike: Thumb up 5 Thumb down 0

  110. al-Ameda says:

    @Another Mike:

    So why didn’t theDemocrats impeach President Bush in the two years they held congress? Because among other reasons, your points are all bogus when you delve into them. Sounds like they are right from MSNBC.

    Democrats didn’t impeach Bush because, unlike Republicans, they are not driving the Crazy Train, nor are they commandeering the Clown Car.

    Like or Dislike: Thumb up 9 Thumb down 1

  111. Matt Bernius says:

    I just wanted to call out two comments that I think, together, state my issues far better than I did:

    @Tillman:

    These are not excuses to be defended. Contextualized, sure. This is peanuts compared to the shenanigans of the Bush tenure. And as long as that’s what you’re doing, it’s fine. Just recognize that despite this exonerating context, the next president will use the exact same arguments when s/he does something off. S/he’ll be able to point to Bush and Obama as precedents no matter how wrong the context is, and the majority of people will shrug. If context mattered to the ordinary voter, do you honestly think we’d have the representatives we have now?

    @Mikey:

    The problem with that way of thinking is it creates a “rule by man, not of law” situation. What one man considers unjust, another considers just, and predictability and consistency–two hallmarks of a proper, functioning legal framework–go straight down the crapper.

    BTW, I agree that the specific part of the law is most likely unconstitutional — but if that’s the case, the best option would be (now that everything is said and done) for someone to actually try and do what the system suggests and get a Supreme Court ruling on this (which btw, is the best possible approach to take on this issue).

    Like or Dislike: Thumb up 3 Thumb down 0

  112. Matt Bernius says:

    @wr:

    ” Speaking at least for myself, although in general an Obama supporter, I do so because I believe it was a stupid law with no purpose other than craven petty politics, and when that is weighed against the life of this American soldier it would be immoral to follow it. [...] Most people don’t think of The Law as an abstract principle. We think of individual laws. That is what’s happening here.

    I appreciate this point, but again I ask, what happens when the majority of people disagree with you on a given law? Or simply the holder of the White House.

    At some point a Republican will again occupy that seat. What happens when he uses this precedent to do something that his base believes is “a stupid law with no purpose other than craven petty politics?”

    So, for as much as I agree with Emerson’s point, I am also reminded of what Bolt wrote in a Man For All Seasons:

    Roper: So now you’d give the Devil benefit of law!

    More: Yes. What would you do? Cut a great road through the law to get after the Devil?

    Roper: I’d cut down every law in England to do that!

    More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

    Call me crazy, but I get nervous when anyone starts unilaterally cutting down laws. Not because I think Obama’s a tyrant. But I’m always afraid of the *next guy* who follows suit.

    Like or Dislike: Thumb up 4 Thumb down 0

  113. Another Mike says:

    @al-Ameda: Come on, that’s just nonsense talk. Any uneducated moron could say as much. Why not claim Democrats were virtuous and exercised considerable forbearance?

    Like or Dislike: Thumb up 0 Thumb down 4

  114. Orange says:

    The Law! Judges are the Law. Not the laws themselves. And for all the Constitution lovers out there, I wonder how much weight they would give to the Constitution compared to some pesky law.

    This issue is nicely framed though.

    Somebody should invite Bush to a vacation in Europe to see whether he would end up in jail there for having broken the International Law.

    Like or Dislike: Thumb up 3 Thumb down 0

  115. mantis says:

    While I agree that the president should have vetoed the NDAA that included this provision (as I said here), despite how problematic that would have been (Republicans would have claimed he was betraying the troops and brought up impeachment, natch), the fact remains that the Bush administration faced no real consequences for flouting the law in many ways. In light of that, and given we have a Congress that will not do its job, what else could we expect?

    Congress has allowed the executive to expand its power for decades, and under Obama they have focused on restricting powers the executive does need to have (POW transfers being one example) while totally ignoring their responsibility to act on the many problems the nation currently faces and that only the legislature can address. They are the only solution to the problem of the expanding unitary executive, and the chief cause of that problem.

    Like or Dislike: Thumb up 5 Thumb down 0

  116. Matt Bernius says:

    @DrDaveT:

    Responsible adults will do the right thing, regardless of what the law says. If they end up in court, they are free to defend their actions or not, as they choose. And if the law bites them on the ass, they take their medicine like adults. They or others may choose to use this to agitate for changes in the law.

    That “taking their medicine” part is the key, because it allows us to clearly distinguish trampling on a technicality of Executive/Legislative prerogative from torturing prisoners. If you’re willing to stand trial as a war criminal, you presumably feel you have a pretty good justification for your actions.

    To this point, part of my frustration is that, unfortunately, on the executive level there has been no serious attempt by either party to actually follow the system.

    Again, I don’t want impeachment. Period. I think that’s a terrible idea in this case.

    But actually utilizing the Federal Courts to try and make ruling on “unconstitutional” issues isn’t too much to ask. I mean seriously, every president has said the War Power’s Act is unconstitutional, but no one has actual ever attempted to resolve that issue.

    Likewise Obama is arguing this particular clause is unconstitutional. And he took action. Fine. But it would be nice if either the *Executive* or *Legislative* branch would actually do the work to at least attempt to get a post event ruling.

    That would set a far better precedent going forward than simply choosing to ignore one law or another based on it’s argued constitutionality and never actually test your argument.

    Besides chances are the Supremes will punt anyway, but at least it’s worked its way through.

    Like or Dislike: Thumb up 4 Thumb down 0

  117. Another Mike says:

    @wr: It seems to me that a person could consider it a stupid law only, if one believed that the president exercised exclusive control over the disposition of the prisoners in Gitmo. One would have to believe that congress, acting in the interest of people, has no business or say-so in what happens to these prisoners.

    Like or Dislike: Thumb up 2 Thumb down 1

  118. James Pearce says:

    @Matt Bernius:

    What happens when he uses this precedent to do something that his base believes is “a stupid law with no purpose other than craven petty politics?”

    If our next Republican president doesn’t notify Congress 30 days prior to a prisoner swap, I think I will shrug. I mean, maybe I’ll be upset, but probably not.

    The precedent of president’s ignoring laws they find inconvenient has already been set. It’s such a presidential tradition that it only gets notice if it’s especially egregious.

    Is flipping Congress the bird on the notification “especially egregious?”

    Like or Dislike: Thumb up 6 Thumb down 1

  119. jamie says:

    WE leave no brother or sister in arms behind…..F your politics

    Like or Dislike: Thumb up 5 Thumb down 1

  120. al-Ameda says:

    @Another Mike:

    Come on, that’s just nonsense talk. Any uneducated moron could say as much. Why not claim Democrats were virtuous and exercised considerable forbearance?

    (1) I do not claim that Democrats are virtuous, because, unlike Republicans, I do not make egregiously preposterous claims of purity and righteousness.

    (2) Alright, I’ll take the bait – What did I say that was nonsense?

    Republicans are apoplectic when it comes to Obama, and have veered off into Black Helicopter political territory. You don’t think so? Up until the last election, polling consistently showed that half of Republicans believed Birther claims that Obama was not a legitimate president, that he was ineligible to be elected president. And there is much more.

    Republicans are not new to the Crazy Train, we have a perfectly fine contemporary example of that. Why did Republicans run 6 years of permanent investigations of Bill Clinton – getting into old law office billings, Whitewater land deals, WH travel office operations and a lot of other items unrelated to governance – and eventually impeach Clinton based on a virtual sting operation? Because they could, that’s why.

    Democrats did nothing of the sort to GW Bush even though some wanted to. Why? because their leadership (Pelosi) said that it would be unproductive. These days, as then, Republican leadership is all in for the kill, by any means necessary.

    Like or Dislike: Thumb up 12 Thumb down 2

  121. Rafer Janders says:

    @Matt Bernius:

    BTW, I agree that the specific part of the law is most likely unconstitutional — but if that’s the case, the best option would be (now that everything is said and done) for someone to actually try and do what the system suggests and get a Supreme Court ruling on this (which btw, is the best possible approach to take on this issue).

    For that you have to have a case, which means you have to have someone sue, which means the law must be broken in the first place for there to be a cause and standing.

    Like or Dislike: Thumb up 4 Thumb down 1

  122. wr says:

    @Matt Bernius: I do appreciate all the thought you are putting into this. But there’s one question I don’t think I’ve seen you address, and it makes a good complement to all the philosophizing:

    If you were in Obama’s position, what would you do?

    You could follow the law, but you know that once you brief congress, it will leak. And even if you don’t know that to 100% certainty, you’ve seen the way Issa’s committee somehow manages to leak anything that sounds damaging, even if it means leaking only bits and pieces. So it’s a pretty safe bet that news will come out before the 30 days are up.

    And let’s say that any public disclosure risked killing the deal, as has been suggested.

    And let’s also say that there’s a chance the Republicans in congress will attempt to stall or kill the deal.

    And you’ve been convinced that if the deal doesn’t happen now, there’s a good chance Bergdahl will die.

    Because I suspect that’s pretty fair assessment of the situation Obama was in.

    So now:

    What do you do?

    Like or Dislike: Thumb up 10 Thumb down 1

  123. wr says:

    @Another Mike: “One would have to believe that congress, acting in the interest of people, has no business or say-so in what happens to these prisoners.”

    Only if one believed that congress was acting in the interest of the people.

    Like or Dislike: Thumb up 3 Thumb down 2

  124. Terrye C says:

    @C. Clavin:

    They will not believe it. They simply will say that these claims are lies..and besides many of them think that the man is a traitor anyway. This is not about rational thought..it is partisan. It is kind of like when people on the left accused Bush of lying about wmd in spite of the fact that Bill Clinton actually said that not only did Saddam have those weapons he would use them.

    Like or Dislike: Thumb up 1 Thumb down 4

  125. Grewgills says:

    @wr:

    If you were in Obama’s position, what would you do?

    If I were immoral or amoral and only looking for political gain in his position I would give congress the 30 days notice. I would ask that they vote to waive the 30 day notice because not doing so would sour the deal and probably lead to Bergdahl’s death and I would further ask them to do so in absolute secrecy until after Bergdahl’s release because not doing so would sour the deal and likely lead to his death. I would do this knowing full well that this would stall in congress and someone, likely a Republican would leak details of the deal and as a consequence Bergdahl would die. I would then tie his death squarely around the leakers necks and leave the Republicans to deal with the consequences of their actions.
    If I were moral and in his position, I would have done more or less what he did, because I wouldn’t trust anyone I notified in congress to keep their mouths shut and not queer the deal.

    Like or Dislike: Thumb up 8 Thumb down 1

  126. Jeremy says:

    @Tillman: This. The real problem is that we are all a bunch of gutless idiots.

    Like or Dislike: Thumb up 4 Thumb down 0

  127. michael reynolds says:

    @wr:

    What do you do?

    Indeed. Because this was not some abstract policy debate, it was an actual American soldier, and an actual American family.

    Great harm could come from obeying the law, no harm would come from disregarding it.

    Here’s an analogy. The law says you must stop at a red light. You see a man bleeding to death on the far side of an intersection. It’s the middle of the night, you have a clear field of view, no other traffic is on the road. You could save that bleeding man, but you’re stuck at the light.

    Do you run the red light and save the man, or do you obey the law?

    And just to make it specific and personal rather than general, the man stopped at the light is you @Matt Bernius, and the person bleeding out is your child.

    You and every other decent person on this planet would run the red light and save the life. Are you really condemning a man for disobeying a minor and quite likely unconstitutional law in order to save a soldier’s life?

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  128. OzarkHillbilly says:

    I’m sorry, I just don’t get it. I mean, yeah, Obama broke a law, he did not notify Congress 30 days in advance of releasing some Gitmo prisoners in trade for an American soldier. Now, some people have their panties in a bunch, because he did what he said he would do if the necessity arose. OK.

    I first voted in ’76. 2 years after a President resigned for committing criminal acts in an effort to rig our political system. People went to prison because of this. He did not because his appointed VP pardoned him after becoming P.

    A few short years later another Administration was caught trading arms for hostages in direct contravention of duly passed laws, and what is more using the funds derived from those arms sales to arm an insurrection in Central America. While several members of his admin went to prison, HE got off because everybody knew he was senile.

    The NEXT Prez jizzed all over some girls dress. Republicans were upset.

    The Prez after him, started a war on ginned up intel, tortured people, indefinitely detained hundreds (thousands?) of people, basically engaged in war crimes we executed Nazi’s for, and sits in a suburb of Dallas, TX making really bad paintings of Vladimir Putin as punishment for his crimes.

    The Prez after him…. get this now… he fails to notify Congress… this is the big evil thing he has done, he DID NOT TELL SOMEBODY…. that he was trading some POWs for an American POW. When we are ending a war.

    THIS IS WHAT HAS YOU PEOPLE UPSET?????

    I. give. up. This country is dead. Or should be. Cause you people are a complete waste of oxygen.

    Like or Dislike: Thumb up 12 Thumb down 2

  129. Mikey says:

    @wr: I’d do what President Obama did, were I the President, because EVERY President would have done what Obama did. Given the same set of circumstances, no President, of any party, would have done any differently.

    This is what all the Republicans who are gnashing their teeth over this are conveniently forgetting. Bush (43) would have done this, Bush (41) would have, Reagan certainly would have. Hell, I bet Lincoln would have.

    Like or Dislike: Thumb up 7 Thumb down 0

  130. Tillman says:

    @OzarkHillbilly:

    sits in a suburb of Dallas, TX making really bad paintings of Vladimir Putin as punishment for his crimes.

    I like his painting of Vladimir Putin. (He really captures the cold stare of the autocrat.) It’s his painting of Junichiro Koizumi that’s awful; he turns him into an old Asian lady. He only really has a problem with jawlines.

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  131. Hal_10000 says:

    The argument “Bush broke the law too” encapsulates everything I hate about politics. This Administration was supposed to be different. That’s what they told us. This is just the latest step in the President ignoring Congress when it suits him. On Libya, on Syria, now on the release of prisoners.

    If Obama felt that notifying Congress intruded on his Presidential powers — and there’s a reasonable case that it did — the time to do that was either in a signing statement when he passed the original law or anytime over the last two years while these negotiations were ongoing.

    Like or Dislike: Thumb up 2 Thumb down 3

  132. Tillman says:

    @Pinky: Nah, the appropriate analogy would be a gay couple who are both bodybuilders when they get married (stay with me here), but one starts becoming a fatty couch potato and complains every time the one who kept up the muscle moves the furniture without consulting him first.

    “It’s, like, you’re not pulling your weight in this relationship anymore.”

    Like or Dislike: Thumb up 1 Thumb down 0

  133. Grewgills says:

    @Hal_10000:

    This is just the latest step in the President ignoring Congress when it suits him. On Libya, on Syria, now on the release of prisoners.

    How did he ignore congress on Syria in any meaningful way? No congressional notice or approval is required for saber rattling.

    If Obama felt that notifying Congress intruded on his Presidential powers — and there’s a reasonable case that it did — the time to do that was either in a signing statement when he passed the original law or anytime over the last two years while these negotiations were ongoing.

    You do realize that he wrote a signing statement that said just that don’t you?

    Like or Dislike: Thumb up 6 Thumb down 0

  134. bill says:

    i can’t remember a topic that has garnered so many blogs in here, granted i’ve only been here for a year & a half- just trying to figure out how/why this issue is such a big deal compared to all the rest. sure, some laws are always trampled when dealing with this kind of stuff- i’m perplexed by the national media attention to the guys “status”, they knew he deserted years ago. why a deserter is worth 5 gitmo guys is the real question- obama shirking off laws/ procedures is old news, and accepted by the msm.

    Like or Dislike: Thumb up 1 Thumb down 4

  135. Orange says:

    I hit the Huffington Post and the Bergdahl news was all over the place and I was like “What just happened? What’s Bergdahl?”

    This came out of nowhere. Almost like a Kardashian getting pregnant, again. Expected, but not really.

    I don’t know what Republicans think they have a case here. But now it seems that the issue is compounded by the nearing elections, when even Democrats have to be careful.

    So, perhaps it’s not just because this Bergdahl is news. It’s also because of the nearing elections that we have too much interest into this. With Democrats trying to stay out of trouble until then.

    I also understand it that given the dangers involved, if something bad had happened when making the exchange, Obama would be the one to blame for it. With again a lot at stake, Obama opted for secrecy and got it done, once again.

    Kudos, but not really? :-)

    Like or Dislike: Thumb up 4 Thumb down 0

  136. Jenos Idanian #13 says:

    I’m going to have to break up my response into separate comments.

    The first point questions the intelligence of the Obama administration. Let’s assume that Republicans will attack the move from day one, just for sheer spite. If you’re going in expecting that, why the hell would you give them the club that lets them start off by pointing out that the move broke the law that Obama signed?

    The thinking (if I can call it that) seems to be quite common around here:

    1) start off by gaming out the worst case scenario: Obama notifies Congress, stressing that leaking this could get Bergdahl killed. Or, as at least a sop to the law, notifies the leadership (Reid, McConnell, Boehner, Pelosi). Someone leaks it. That’s a possibility,

    2) Think about just how much you hate, hate, hate the Republicans, and convince yourself that the possibility is actually a probability, if not an inevitability.

    3) Since you’ve convinced yourself that it’s inevitable, why bother? Just do what you want anyway. Besides, with Reid holding the Senate and the Clinton precedent, any attempt to impeach would only be a political plus.

    Besides, you can count on a couple of loyal Democrats in Congress to utterly beclown themselves in your defense — witness Harry Reid claiming he was notified about the swap before it happened, and then the White House saying that he was told about it after the fact.

    Like or Dislike: Thumb up 0 Thumb down 3

  137. Jenos Idanian #13 says:

    Now for the Bush comparison… let’s run with that, shall we?

    (For the sake of convenience, I’m going to use the word “torture” here, even though I still disagree that it applies. But I am NOT going to get into that debate yet again, especially when it is irrelevant in this case — I’m referring to how the issue was handled, not the details.)

    Bush: Did bad things to bad people to keep bad things happening.
    Obama: Did good things to bad people who will almost certainly do more bad things now.

    Bush: Expended considerable time and effort to find and push a legal rationalization for the actions.
    Obama: Just said that the law didn’t apply, and was stupid anyway.

    Bush: Picked the very worst of the bad guys, and did mean things to them.
    Obama: Picked the very worst of the bad guys, and set them free.

    Like or Dislike: Thumb up 1 Thumb down 8

  138. Jenos Idanian #13 says:

    Finally, the World War II comparison: yes, at the end of the war, we released most of the prisoners we’d caught. But the top leaders — we tried most of them, and quite a few were hanged. (seven Japanese, including Tojo, and 10 Germans — would have been 12, but Goering killed himself and Bormann had been killed prior). And a bunch more were imprisoned for life.

    Here’s a thought that just struck me — if we’d captured Bin Laden instead of assassinating him (the troops had orders to kill on sight, not bother trying to take alive), would Obama have traded him for Bergdahl?

    Like or Dislike: Thumb up 0 Thumb down 7

  139. C. Clavin says:

    @Jenos Idanian #13:
    Why are you conflating the Taliban with Al Qaeda? I guess all middle-easterners look the same to you, eh?

    Like or Dislike: Thumb up 4 Thumb down 0

  140. C. Clavin says:

    @Jenos Idanian #13:
    If you support torture then then your belief system is so f’ed you can probably convince yourself of anything…which explains so much about you.
    Torture people and abandon our POW’s.
    Bully for you chicken-hawk.

    Like or Dislike: Thumb up 4 Thumb down 0

  141. Jenos Idanian #13 says:

    @C. Clavin: I knew you’d skip right over all the important stuff and focus on the little aside at the end, Cliffy.

    Thanks for ever disappointing…

    Like or Dislike: Thumb up 0 Thumb down 6

  142. Jenos Idanian #13 says:

    @C. Clavin: If you support torture then then your belief system is so f’ed you can probably convince yourself of anything

    That’s two squirrels you want me to go chasing after, Cliffy… and I said up front that I wouldn’t play that game.

    I’m starting to think that you literally can’t see anything I write besides what you want to see. Your eyes scan for things to latch on to, and your brain (tiny as it is) blocks out everything else. It would explain so much.

    Like or Dislike: Thumb up 1 Thumb down 4

  143. C. Clavin says:

    @Jenos Idanian #13:
    Water-boarding is torture. Period. You support it. Chase the squirrel or not….you’re an idiot and a chicken-hawk. Which is probably redundant.

    Like or Dislike: Thumb up 3 Thumb down 0

  144. C. Clavin says:

    @Jenos Idanian #13:
    What you consider an aside explains your world-view.
    Your level of self-awareness hovers between zero and the Square Root of -1.

    Like or Dislike: Thumb up 3 Thumb down 0

  145. C. Clavin says:

    @Hal_10000:

    If Obama felt that notifying Congress intruded on his Presidential powers — and there’s a reasonable case that it did — the time to do that was either in a signing statement when he passed the original law or anytime over the last two years while these negotiations were ongoing.

    Um…he did have a signing statement to that effect.

    Like or Dislike: Thumb up 4 Thumb down 0

  146. Jenos Idanian #13 says:

    Cliffy wants to make this another argument about waterboarding, that happened over 10 years ago. Which makes me wonder why he’s so desperate to NOT talk about the actual topic at hand…

    Since Cliffy won’t answer, maybe I’ll answer for him. I’ll have to think about this…

    Like or Dislike: Thumb up 0 Thumb down 5

  147. Matt Bernius says:

    @wr:

    If you were in Obama’s position, what would you do?

    Most likely nearly the same thing (sans victory lap).

    I pretty much agree with James Joyner’s take from a different thread:

    There are some legitimate criticisms to be made about the president’s move, although from what I know now I agree with it. I do think he likely broke the law and that the “exigent circumstances” argument holds little water given how much time was spent negotiating. The deal itself was almost certainly a net negative, in that the five guys being let lose could well do harm. I nonetheless think a prisoner swap was what the situation called for; it’s just what we’ve historically done as we’re winding down wars.

    The initial rumblings that the deserter charges didn’t matter, in that he’d already paid a high price in five years of captivity, worried me. But today’s statements make me much more confident that the right thing will be done there.

    As Dave Schuler noted at his place, these are all complicated questions and the president is in a now win situation. I’m inclined to think he did what any president would have done under the circumstances: weigh the alternatives and make the best decision he could.

    I’m not so much saying that this was the wrong thing to do, as I’m *trying* to say that we need to be careful about letting “our guy” do this without issue. The bigger issue is that this is setting up a system based primarily of trust on the guy (or gal) in office to do the right thing because there is no solid oversight and because they last guy in office did the exact same thing.

    What can I say, I’m an idealist. Which of course means I’m constantly disappointed. Which I guess is punishment enough.

    Like or Dislike: Thumb up 4 Thumb down 0

  148. C. Clavin says:

    @Jenos Idanian #13:
    I don’t need to argue about water-boarding…it’s torture. Period.
    You are trying to distract from your support of torture…and what that says about your belief system and your rank cowardice.
    As I said…you support torture and so can likely convince yourself of anything. Ipso-facto what you believe matters not one whit because it’s the view of a psycho-path.

    Like or Dislike: Thumb up 3 Thumb down 1

  149. wr says:

    @Matt Bernius: Thanks for that. I do understand your philosophical concerns, and find them much easier to discuss once the context of what the real world demanded here has been established.

    This goes back to my essential problem with libertarianism (not saying you’re an L — I mean it only as a comparison). Everything they preach seems to be rooted completely in theory, with absolutely no consideration of how the real world actually works and what the real consequences are for real people.

    And so please allow me to say that yes, I do agree with your concerns here. They say that hard cases make bad law, and that probably applies to this situation.

    Like or Dislike: Thumb up 6 Thumb down 0

  150. Tillman says:

    @Jenos Idanian #13: Y’know, you have a real gift for explaining things in either their very best or very worst lights. You’re like a portraitist who has mastered color, and can make his subject appear angelic or demonic without changing any of his features.

    Me, I’m constrained by reality and attempting accurate description, but you are an artist.

    Like or Dislike: Thumb up 2 Thumb down 1

  151. Matt Bernius says:

    @wr:
    Thanks sir! Glad we reached some type of common ground.

    Like or Dislike: Thumb up 0 Thumb down 0

  152. bill says:

    @Orange: i’m sure the huff post gave all the details in a nice, unbiased way- but there’s more to the story, namely why a deserter was “rescued” after 5 yrs in exchange for 5 gitmo guys? i’m really not concerned about the laws/procedures abused to get a soldier back from captivity, just why were they for this guy? i doubt if this will do much for the upcoming elections as it’s not anyone’s ball but obama’s – there’s plenty of other stuff to campaign on.

    Like or Dislike: Thumb up 0 Thumb down 0

  153. wr says:

    @bill: ” i’m really not concerned about the laws/procedures abused to get a soldier back from captivity, just why were they for this guy? ”

    Um, because he was the soldier who was in captivity?

    Should they have traded him for a different US soldier first, and then swapped the prisoners for him?

    Like or Dislike: Thumb up 4 Thumb down 1

  154. DrDaveT says:

    @Jenos Idanian #13:

    Bush: Did bad things to bad people to keep bad things happening.

    This has got to be the most awesome Freudian slip of 2014 so far.

    Like or Dislike: Thumb up 14 Thumb down 0

  155. al-Ameda says:

    @Jenos Idanian #13:

    Bush: Did bad things to bad people to keep bad things happening.

    “Mission Accomplished”

    Obama: Did good things to bad people who will almost certainly do more bad things now.

    Osama Bin-Laden might disagree.

    Like or Dislike: Thumb up 2 Thumb down 1

  156. al-Ameda says:

    @Terrye C:

    It is kind of like when people on the left accused Bush of lying about wmd in spite of the fact that Bill Clinton actually said that not only did Saddam have those weapons he would use them.

    Actually, it’s more like — people began to realize that ACTUAL weapons inspections showed there to be no WMDs, then people began to believe that Bush was going to go to war in Iraq regardless of the evidence that gave the lie to his assertion that Iraq presented a grave threat to America.

    Many people (including Bill Clinton) believed that Saddam had WMDs because he used sarin gas in earlier wars. EMPIRICAL evidence, resulting from actual inspections, showed there to be no WMDs. There is a difference between speculative statements and statements based on fact.

    Like or Dislike: Thumb up 4 Thumb down 1

  157. Jenos Idanian #13 says:

    @Tillman: I’m going to take that as a compliment, sir.

    @DrDaveT: This has got to be the most awesome Freudian slip of 2014 so far.

    An entirely fair cop, and you got me to actually wince and chuckle. Of course, what I meant was “Did bad things to bad people to keep other bad things from happening,” but yeah, I typoed. Thanks for the correction.

    @C. Clavin: Today’s useless factoid: if you ever want to divert Cliffy from the topic at hand, just say “waterboarding.” He’ll go haring off in a heartbeat.

    This is useless, of course, because Cliffy almost never actually addresses the topic, but this could be used to get him to change his diversion.

    @al-Ameda: Obama: Did good things to bad people who will almost certainly do more bad things now.

    Osama Bin-Laden might disagree.

    The “bad people” in question here are the 5 Taliban leaders Obama freed, not Bin Laden. But this bring up my Bin Laden hypothetical: what if Bin Laden had been captured alive, and the Taliban had demanded he be freed in exchange for Bergdahl? How would you have responded?

    1) Totally out of the question. To do so would be damned near to treason.

    2) Great idea. Whatever it takes to get our guy back.

    3) Option 1 until Obama actually does it, then Option 2 while pretending the first never happened.

    Like or Dislike: Thumb up 2 Thumb down 2

  158. Grewgills says:

    @Jenos Idanian #13:
    Waiting 30 days would almost certainly have soured the deal and ended with Bergdahl dead. Notifying the leadership only for less than 30 days would not have satisfied the notice requirement and risked a leak which would have soured the deal, so would have risked losing Bergdahl while gaining nothing. That leaves the option of notifying the congress and requesting that the 30 day notice requirement be waived (assuming we want Bergdahl returned). Do you honestly think that that request would not have been stalled in congress? Do you honestly think that that request would not have been leaked to the media in days if not hours? If this were a republican president and the same exact thing happened what would you be arguing here?

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  159. Jenos Idanian #13 says:

    @Grewgills: Waiting 30 days would almost certainly have soured the deal and ended with Bergdahl dead. Notifying the leadership only for less than 30 days would not have satisfied the notice requirement and risked a leak which would have soured the deal, so would have risked losing Bergdahl while gaining nothing.

    This deal has been in the works for quite a while. There was plenty of time and opportunity for Obama to act within the law.

    My hunch is that the Obama administration feared wasn’t the deal leaking out, but someone actually saying to your face “are you out of your effing minds? This deal is idiotic!” Because that would have taken away their ability to say “no one could have foreseen” the deal turning into a complete disaster should it do so.

    While not technically meeting the letter of the law, Obama could argue that he was following the spirit of the law by notifying the 4 top Congressional leaders (or, alternately, the 4 top members of the Intelligence Committees, who are used to keeping things secret). That would have given him at least a little cover, and co-opted 2 Republican leaders (either McConnell and Boehner, or Rogers and Chambliss) to having to say yeah, we were informed of this ahead of time and had the opportunity to advise and consent.

    And let’s get totally cynical here. Suppose the news of the possible deal did leak. Would that have put Bergdahl’s safety at risk? Doubtful. On the other hand, it would have given Obama this huge honking club to beat the living crap out of the Republican/Republicans who leaked it. They would have gone on all the networks and talk about how Senator Redstate had violated his oath of office and endangered the life of an American prisoner for cheap political gain. Just imagine Jay Carney at the podium, saying “we were engaged in some very sensitive negotiations for Sergeant Bergdahl’s safe return when Senator Redstate, in a cheap political move, violated his oath of office and his pledges to respect the confidentiality of the information he was given to advance his own political career and smear this administration. We call on the Congress to remove Senator Redstate from his position on the Intelligence Committee and censure him for his deeds.”

    THAT would have been the smart play. Instead, Obama simply decided that he didn’t have to obey the law, because he knows that the only real thing he has to fear is impeachment, and the Senate Democrats have his back enough to know that it will never happen. And even if it does, he’s most likely come out even stronger politically.

    I’ll repeat my earlier question: if you KNOW that your political opponents are going to attack you politically over an issue, why the hell would you go into it by choosing to break a law? Why the hell would you give them that extra club, that extra credibility? What possible good could come from that?

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  160. Grewgills says:

    @Jenos Idanian #13:

    This deal has been in the works for quite a while. There was plenty of time and opportunity for Obama to act within the law.

    and Obama informed congress that the deal was in the works as early as 2012 and since then, what he didn’t do was inform them and wait 30 days after the deal was finalized.

    My hunch is that the Obama administration feared wasn’t the deal leaking out, but someone actually saying to your face “are you out of your effing minds? This deal is idiotic!”

    It would have been a minority, but a minority with the ability to leak to the press would have killed the deal. If you don’t think there is a minority with an ax to grind that would leak just to screw over Obama and cost him a win you haven’t been watching for the past 6 years.

    While not technically meeting the letter of the law, Obama could argue that he was following the spirit of the law by notifying the 4 top Congressional leaders (or, alternately, the 4 top members of the Intelligence Committees, who are used to keeping things secret). That would have given him at least a little cover

    It wouldn’t have changed the legality or the backlash, so it would have been a risk with no payoff.

    And let’s get totally cynical here. Suppose the news of the possible deal did leak. Would that have put Bergdahl’s safety at risk? Doubtful.

    Given that the Taliban specifically said that if the deal was leaked it was done, they had walked away before, and it appeared that Bergdahl’s health was failing, I call BS on your doubtful.

    On the other hand, it would have given Obama this huge honking club to beat the living crap out of the Republican/Republicans who leaked it.

    Which is why I said if I were an immoral or amoral Obama I would have given the notice confident that it would be leaked and that would give me that huge club to beat Republicans with. Of course Bergdahl would likely die in Afghanistan, but I would get to beat up the Republicans, so politically I win.

    They would have gone on all the networks and talk about how Senator Redstate had violated his oath of office and endangered the life of an American prisoner for cheap political gain.

    Assuming it wasn’t an anonymous leak.

    THAT would have been the smart play.

    That would have been the smart play for someone that didn’t care whether Bergdahl lived or died and only cared about political gain.

    if you KNOW that your political opponents are going to attack you politically over an issue, why the hell would you go into it by choosing to break a law?

    Because he wanted to save a soldier’s life and that was the only sure way to do it, for the reasons I have outlined above.

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  161. Jenos Idanian #13 says:

    @Grewgills: I guess we’re going to have to agree to disagree here. I’m just not willing to put much stock in Obama’s “I had to break the law” argument with his constantly ignoring, flouting, or rewriting the law whenever it’s politically expedient. Especially since he’s declared, on several occasions, that if the law doesn’t say what he wants it to say, he’ll just do what he wants anyway.

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  162. al-Ameda says:

    What this thread tells me is that Obama needs to steer clear of any situation where the lead title begins with a “B.” For some reason Republicans have determined that Obama is vulnerable to fabricated crises that begin with the letter “B” – Benghazi, Bergdahl, Birth Certificate (Birthers), Bin Laden.

    Like or Dislike: Thumb up 1 Thumb down 0

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