A Few Modest Thoughts on the Bergdahl Exchange

by Dr. Gerard Emershaw

The following is a list of thoughts on President Obama exchanging five Taliban prisoners held at Guantanamo Bay for captured Sergeant Bowe Bergdahl.

 

1. Innocent Until Proven Guilty

Regardless of accusations against Bergdahl, the American justice system—including the military justice system—is premised on the concept of innocent until proven guilty. Unless and until Sergeant Bowe Bergdahl is court martialed and convicted, he is simply an American army sergeant who was captured and held by the Taliban. Rushing to judgment on Bergdahl would be a foolish mistake. Just ask the French about Captain Alfred Dreyfus. The same neocon operatives who in an Orwellian fashion made distinguished Vietnam War veteran John Kerry seem like a cowardly traitor and the frat boy weekend warrior George W. Bush seem like a war hero appear to be at work in the Bergdahl story. Regardless of what turns out to be true about the nature of Bergdahl’s capture by the Taliban, the hatred aimed at him by neocons provides a stark counterexample to any rhetoric about supporting the troops. For neocons, troops are nothing more than cannon fodder to be used to fight pointless corporatist wars of choice. Bowe Bergdahl volunteered to serve his country. That is more than enough to earn him the benefit of the doubt until all the facts are in. Serving in the military is far more than chickenhawks like William Kristol, Robert Kagan, Max Boot, Paul Wolfowitz, or the rest of the Trotskyite gang that couldn’t think straight ever did.

2. Mental Health Issues

Assume that Sergeant Bowe Bergdahl did walk off his base and become AWOL. How can anyone be certain that mental health issues were not an important causal factor behind his actions? Prior to joining the army, Bowe Bergdahl was discharged from the Coast Guard for psychological reasons. If he was not psychologically fit to serve in the Coast Guard, might it also not be the case that he was unfit to serve in the army?

Bergdahl also told his parents that he witnessed an Afghan child run down and killed by a military vehicle. If this actually occurred, then it is possible that it led to him suffering PTSD. If it did not actually occur, but he believes that it did, it is a possible sign of mental illness.

When Bergdahl slipped away from his camp, he was armed only with a knife, water, a digital camera, and a diary. Walking out into a hostile terrain filled with potentially deadly enemy insurgents is not prima facie the kind of thing that a mentally stable individual does. The point is that one cannot be certain about his mental state at the time he walked away from his post.

What is certain is that Bergdahl requires mental health care after five years in captivity. Bergdahl has claimed that he was tortured and kept in a cage by his captors. The Taliban is notorious for using torture, so Bergdahl’s claims are hardly implausible. Draft dodging Senator Saxby Chambliss is skeptical about Bergdahl’s torture claims, but his treatment of Max Cleland in the 2002 election demonstrates what Senator Chambliss thinks of veterans.

If Bergdahl does turn out to have been suffering from PTSD or other form of mental illness, he may well become emblematic of the failed neoconservative/neo-progressive wars of choice in the Muslim world. He will be another disposable human being cast aside by the warmongers after he was no longer useful. While it happened on President Obama’s watch and he is responsible, the VA scandal is a symptom of the attitudes that both parties have had toward American military personnel for a long time. The anger toward Bowe Bergdahl just confirms this.

3. 5 for 1

President Obama traded five Taliban prisoners in exchange for the return of Bowe Bergdahl. Israel—a nation that faces actual terror threats and does not need to cook up phony terror plots to foil like the FBI does—traded 1,027 Palestinian and Arab-Israeli prisoners in 2006 in order to bring about the release of its soldier Gilad Shalit. Of these prisoners, 280 were serving life sentences. Combined, the released prisoners were responsible for the deaths of 569 Israelis. This deal was authorized by Israeli PM and Likud Neocon Benjamin Netanyahu. If an Israeli soldier is worth 1,000 Palestinians to the Israeli government, what does it say about the United States government that so many think that an American soldier was not worth 5 Taliban insurgents?

According to Brig. Gen. Mark Martins, the chief prosecutor in the military commission, the five Taliban prisoners exchanged for Bergdahl—Abdul Haq Wasiq, Mullah Norullah Noori, Mullah Mohammad Fazi, Mullah Khairullah Khairkhwa, and Mohammad Nabi Omari—were all unlikely to be successfully prosecuted. If they are not convicted criminals, then these men—as unsavory as they may be—are essentially POWs. The Taliban is not a terrorist organization but is an insurgency made up of members and supporters of the deposed fundamentalist Afghan government. As such, the United States should be planning on releasing such fighters now or in the not too distant future. When the Nuremberg Trials were completed, the United States did not hold German or Japanese POWs indefinitely. If the United States was not afraid of soldiers who fought for the Axis, then it should not be afraid of soldiers who fought for the Taliban. If such an insignificant group as the Taliban is viewed as a legitimate threat to the United States, then the nation is simply not as great or as brave as it once was.

4. Impeachment

In the area of foreign policy, there are several things which President Obama has done which could technically constitute impeachable offenses. Among these actions are his unconstitutional “kinetic military action” in Libya, his drone campaign in the Middle East, and his assassination campaign which led to the deaths of American citizen Anwar al-Awlaki and his son. However, President Obama moving the five Taliban members from Gitmo without Congressional authorization is not among those potential impeachable offenses.

Under the Constitution, the President is Commander-in-Chief of the armed forces. The Guantanamo Bay detention facility is a military prison. Whether President Obama signed the legislation requiring the President to notify Congress in advance regarding the movement of detainees from Guantanamo Bay is irrelevant. The President may not consent to unconstitutional actions.

The Constitution grants Congress the power to declare war. Congress has unconstitutionally ceded this power to the executive branch. However, enumerated powers are not something that can be traded. Congress cannot assume the power to have advanced knowledge or input into the movement of military prisoners just because it has given up powers elsewhere to the President. Article I, Section 8 grants Congress the power to “make Rules concerning Captures on Land and Water.” While charitably this may grant Congress the power to make laws concerning how prisoners which will be sent to Guantanamo Bay are captured, there is nothing in the Constitution which gives Congress any power over these detainees once they are captured.

The main reason that Republicans in Congress have been so quick to seize on this point is that it is a very unique situation that is not likely to be repeated. Therefore, there is no risk of discouraging the next Republican President from being an Imperial President. Neoconservatives and other militaristic Republicans want their party’s next Commander-in-Chief to be able to unilaterally wage war like Caesar. Therefore, they are far less likely to criticize President Obama from doing the same in Libya or for his drone campaign.