Saturday, June 7, 2014


Trying to answer the question of whether the Bergdahl prisoner swap was or was not legal, I waded into the murky waters of federal legislation.

Typically of the way Washington works, the controlling law is contained in a massive omnibus bill that runs something like 211,214 words and includes literally thousands sections dealing with all kinds of matters.

Apparently the legal dispute here involves section 1035 of the  NDAA – the National Defense Authorization Act, which  authorizes various expenditures of public funds in 2014.

Here is what the section provides:

(Sec. 1035) Authorizes the Secretary to transfer or release any individual detained at Guantanamo to such individual's country of origin or another country if: (1) the Secretary determines that the individual is no longer a threat to national security, or (2) such transfer or release is to effectuate an order by an appropriate U.S. court or tribunal. Requires, as further determinations prior to such transfer, that: (1) actions have been planned or taken that will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or hostile activity that threatens the United States, and (2) the transfer is in the U.S. national security interest. Outlines factors to be considered in making such determinations, including any confirmed cases of recidivism of individuals previously transferred to such country. Requires the Secretary, at least 30 days prior to such a transfer, to notify the defense, appropriations, and intelligence committees. Defines a detained individual as one located at Guantanamo as of October 1, 2009, who is not a U.S. citizen and is in the custody or control of DOD or otherwise under detention there. Repeals superseded authorities..

Section 1035 allows the Secretary of the Navy, who in is charge of Gitmo, to release detainees to their country of origin or some other foreign country, if he decides the person is no longer a threat to national security, and if the transfer is in the national interest, after taking into consideration whether others released to that country resumed their terrorist activities. It further requires the Secretary to notify defense, appropriations and Intelligence committees of the Congress at least 30 days before making the transfer.

The Secretary of the Navy is a man named Ray Mabus. A graduate of the Harvard Law School, Mabus was the Governor of Mississippi and served as Ambassador to Saudi Arabia under President Bill Clinton. He was appointed Secretary of the Navy by President Obama in 2009.

Now here’s the way I read the Bergdahl case: if the President of the United States instructed the Secretary of the Navy to release five Gitmo detainees forthwith, the Secretary should have refused to do so without giving Congress thirty days notice as required by the law.

If the President insisted, the Secretary should have resigned. If the President simply by passed the Secretary and issued a direct order to the Gitmo Commandant, there are other questions. The best I can figure, that would involve Rear Admiral David B. Woods, Commander of JTF_GTMO the joint task force in charge of the Guantanamo facility.
Of course, Woods ought to have respectfully declined the President’s order, insisting that he be instructed through the proper chain of command.

Now, I suppose there is a question of whether the President, by instructing the Secretary of the Navy to violate the law, is guilty of an impeachable offense.

That would depend on the nature of the directive from the President to the Secretary. Did Obama tell Mabus to release the prisoners without giving Congress the thirty day notice? When was prisoner exchange deal made? Was Mabus aware of it soon enough to give the required notice?

I have the feeling that the whole matter is a juicy subject for Congressional investigation, with the full array of hearings and charges of partisan nit picking.

Who said what to whom? And when? Who decided not to tell the committees? The answers will come from both sides of the aisle, and we will have another partisan circus in the nation’s capital.

The thirty day rule is a procedure. A nit to pick. It avoids and complicates the real issue.

The sad fact is that the American people are left to debate whether Bergdahl should have been brought home by releasing five detainees, which brings up the whole question of “detainees.”  Are they prisoners of war? If so, what war? Who declared a war? Who are we at war against? Are these detainees soldiers or criminals? If they are soldiers, what nation do they fight for? If they are prisoners of war, and the war is over, they should all be sent home. If they are criminals, what crimes have they committed and have they been convicted and sentenced? If they are criminals, they should be brought to justice, in a civilized, constitutional manner.

The Bergdahl case is just another side show.

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