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Foggy Points of View on Bergdahl

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BOWE BERGDAHL
U.S. Army via Getty Images

When one usually speaks of the "fog of war," the term is generally understood to mean the disorganization of combat. When battles are fought, it is often unclear as to what is going on, whether you're a private in the trenches or a rear-echelon officer trying to keep on top of a developing situation under your command. What is also understood is that after a while, the fog usually clears somewhat. Things which aren't immediately apparent become clarified when enough time has passed for accurate reports of the situation to come in.

In the case of recently released prisoner of war Sergeant Bowe Bergdahl, this progression was reversed. What at first seemed very clear-cut almost instantly became clouded in fog. This fog may clear some when the Army makes a formal statement about the circumstances of Bergdahl's capture by the Taliban, but until that point the speculation is running pretty wild. Due to this lack of facts, the most I can do is offer up my own points of view, some of which I have yet to see expressed elsewhere. So, while we all wait for the facts to come in and the fog to clear a bit, here are some initial reactions. I'm not going to get into every aspect of the case in this initial article, but I'm sure we'll all have time to minutely examine everything in the coming days. As I said, these are just my initial reactions -- the ones that I haven't been hearing from others yet. I'm sure to have more later, when the fog starts to clear a bit for us all.

 

Leave no soldier behind -- and don't leave your problems for others.

The best comment I've yet heard on one of the core issues that detractors are raising -- that if Bergdahl deserted his post, he wasn't worth rescuing or retrieving in any way -- came from Pentagon spokesman Admiral John Kirby: "When you're in the Navy, and you go overboard, it doesn't matter if you were pushed, fell, or jumped. We're going to turn the ship around and pick you up."

This is the most succinct explanation I've yet heard on the military's view of leaving no soldier behind, for any reason. Even someone who has jumped ship gets picked back up.

There's a reason for this, and it's a reason I haven't heard anyone (especially any current or former military officers) adequately explain. Because if a soldier does something criminal while he's in a war zone and wearing the uniform of the United States, it is not only the military's legal prerogative to retrieve that soldier, but also their duty and responsibility to do so. Because they reserve the right to punish their own.

The Army doesn't delegate punishment responsibility to the forces they are fighting. They really don't have the option of taking a "well, he deserted, let's just leave him with the Taliban" attitude towards the matter. They can't. They are legally responsible for their soldiers' actions while in a war zone, and they never just hand over a soldier to a local court for punishment of any kind -- even if the soldier went berserk and killed a bunch of local non-combatant women and children. Tragic events such as these have indeed happened in Afghanistan, and in each case, the military tried their own in courts martial. If convicted, the offender then serves his time in military or federal prison. That's the way it works, for very good reason. If the Army is to be trusted by local populations, it has to show that it punishes its own fairly, but it never defers to local prosecution or punishment. And it certainly never lets the enemy dole out the punishment.

What Bergdahl is accused of is more of an offense against the Army itself than against the local population, which strengthens the case for him to be repatriated and face justice by the Army. But even if all the media stories are true and Bergdahl did exactly what people are accusing him of now, the Army doesn't have the option of just forgetting about him and not doing everything they can to recover him so they can fulfill their own responsibility for holding him accountable for what he did.

 

What he did.

Sergeant Bergdahl is innocent until he is proven guilty. To suggest anything else, at this point, is downright un-American. We haven't even heard his side of the story yet, folks.

If he did wander off with some intention of helping the enemy forces, he apparently didn't do such a hot job of it. The Taliban has always considered him a prisoner, after all, and not one of their own. This is a key point many seem to be missing.

If he is eventually charged with the worst possible scenario (from the stories which are now circulating, but short of turning his coat and aiding the enemy), he might face charges of desertion under duty, with the added circumstance of indirectly causing the deaths of fellow soldiers who were looking for him. He could face the death penalty, if this is proven in a court martial. If proven, he certainly isn't any sort of hero, even if he did endure five years of captivity in the enemy's hands. But none of this is proven, and the Army hasn't even made any of the facts public yet. Time will tell whether the facts support a trial and punishment, but it is up to the Army to determine these facts, and it will be up to the Army to decide what to charge him with and what punishment to seek. Until it does, everything you hear is no better than speculation.

 

The 30-day notice law.

While there have been several complaints made about how President Obama acted (including some from John McCain, who really should know the facts of prisoner-of-war swaps a little better), one struck me as more important than the rest, because it is part of a constitutional power struggle between the executive and legislative branches that goes back to Vietnam. In a nutshell: where do the powers of the Commander-In-Chief end, and the war-making powers of Congress begin?

Congress passed a law which stated that President Obama had to give them 30 days notice before any prisoners could be released to foreign countries from the American military prison in Guantanamo Bay, Cuba. President Obama, in a signing statement attached to the law, said that he thought this infringed on his executive powers under the Constitution. But it's really a fight that has been going on since the passage of the War Powers Resolution of 1973.

First, there is the open question of signing statements themselves. When President Bush used them, Republicans defended his assumption of the "unitary executive" concept: the power of a president to alter bills as he signed them, to suit his purposes. At the time, Democrats howled that it was an extra-constitutional usurpation of congressional powers. Now that a signing statement from President Obama is under the microscope, I fully expect these positions to be reversed, politically. I could easily see some Democrats making the case for Obama's signing statement to be the final word on the subject, while Republicans will howl. All par for the course, really.

But the underlying fight is even bigger: how much war-making power does the president have, and how much does Congress have? There have been numerous (and notable) struggles about whether the War Powers Resolution itself is constitutional or not, between presidents and Congresses led by both political parties. It is non-partisan, really, because Republicans and Democrats both always see things differently when they get into the Oval Office (versus how they might have seen things from Capitol Hill). But here's the key: neither side -- and neither party -- has ever had the guts to take the War Powers Resolution to court. They are afraid they might lose, to be blunt. Everyone is actually happier to leave its constitutionality hazy, in fact.

Whether Congress can limit the president in his treatment of prisoners of war easily falls into this ongoing debate. The question, again, is whether Congress is even allowed to put such restrictions on presidential powers. Congress passed a law stating such restrictions. President Obama attached a signing statement that said he considered this to be a usurpation of his Commander-In-Chief powers. These opposing views are about to be tested, but they likely won't ever be tested in court -- for the same reasons the War Powers Resolution has never appeared before a judge.

Instead, we will get a lively investigation in Congress to score some political points, but really the only option they've got open to them is impeachment, which I just don't see happening (at least, not before the midterms). But neither side will likely be willing to set the matter before the judicial branch of government -- and even if they did, it might get thrown out of court as a purely political matter better solved at the ballot box.

In any case, it's pretty clear that Barack Obama didn't follow the letter of this law. He's even apologized for not doing so, which is pretty close to an admission that he did indeed ignore the law. There are two big constitutional questions here, whether the media and the politicians focus on them or not: the validity of presidential "signing statements," and whether Congress even has the power to limit the military options open to the president in such a fashion.

Obama, of course, has stated that there were extenuating circumstances which forced his hand. He hasn't really fully stated this argument, which might best be put: "What else was I supposed to do -- notify Congress and watch an American soldier possibly die in enemy hands, when I had the power to avoid that outcome?" While the president's opponents are making a lot of noise about what they didn't like about the prisoner of war swap, eventually things are going to boil down to this crucial question -- what else would you have had Obama do? So far, it seems this question isn't really even being asked much.

 

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