Sgt. Bergdahl and President Obama — Updated

Will a court martial determine whether he deserted,
committed treason or another other serious offense?
What difference does it make now?

An article at Blackfive titled Big Problems With Bergdahl Deal is the best I have read thus far about the ransoming of Sgt. Bergdahl from the Taliban. Lacking sufficient verifiable information, the author refrains from challenging his conduct based solely on allegations about how and why he wound up with the Taliban.

When George Zimmerman was tried in the media for murdering Trayvon Martin — a sweet little boy who looked a lot like the son President Obama might have had — he was found guilty almost by acclamation. Later, as the facts developed, he was properly acquitted by a court on all charges.

It would be unfortunate were Sgt. Bergdahl found guilty or innocent in the media based on rumor, hearsay or other information not admissible in a court of law. That has already begun, and not only in the conservative media. Here’s a YouTube video of Susan Rice claiming that he served “with honor and distinction.” (Tip of the hat to Bunkerville for the video.) When did he do that? Before or during his Taliban residency?

Unfortunately, as I suggest below, there may never be a trial because it could prove embarrassing for President Obama.

The Blackfive article:

After discarding claims about what Sgt. Bergdahl did or did not do, the article dissects the deal itself. Here are excerpts:

There are plenty of tales out there about how he was captured that paint him in a very negative light: He was drunk and wandered off; he shed his uniform and headed into the mountains to be the Grizzly Adams of the Hindu Kush; or even that he left to join the Taliban. The bottom line is nobody but Bergdahl knows what he did or why and all the speculation is unseemly. If he was drunk or just deluded, he certainly paid a pretty heavy price with five years of his life. If he actually deserted, his guilt needs to be established by more than Internet chatter. [Emphasis added.]

The only way to do that is by court martial.

The problems with the deal we made is not the worthiness of Bergdahl, but the price we paid and the timing of the deal. We are releasing five of the most heinous and senior Taliban leaders we ever captured. Men with the blood of hundreds of US troops on their hands who will spend the rest of their lives adding to that toll. They are unrepentant, barbarian killers and the Afghan people we are supposed to have been helping all these years will pay the price when these men rejoin the resurgent Taliban. We are packing our things and loading planes to come home and the Talibs have known this since Obama unveiled his faux surge at West Point in 2009. He announced more troops were coming and he announced that those same troops would be leaving prior to his next election campaign. The Taliban plays the long war and they knew they could wait us out and they did. [Emphasis added.]

. . . .

The next point is why now? This deal has been on the table for several years. The Taliban proposed it and we could have agreed to it at any point. Why let Bergdahl rot for years if this was an option? The simplest answer is that this is and was a horrible deal that never should have been made. As much as it pains me to say, the life of one American POW is not worth the certain deaths of the hundreds or thousands who will die at the hands of the scum we have just unleashed. Those are the tough decisions and calculations that the Commander in Chief should weigh. We cannot pay any cost to regain a prisoner, because some costs are just too high. This was one of those times. [Emphasis added.]

So what changed to make this happen? Several things did, starting with the fact that we have lost the war in Afghanistan and the Taliban know it. That makes their position stronger and the already prohibitive price we paid for Bergdahl would have gone up every day as we pack up our tents and go. Obama made another trip to West Point to use the cadets as props for a political speech and told the world again exactly when the last helicopter would pull out of Kabul. We would have had fewer resources to look for and potentially rescue Bergdahl every day and our clout at the negotiating table was rapidly approaching zero.

The other reason was that Obama desperately needed a win of some kind. Spare me any howls of outrage that the President would never play politics with lives and national security. This one does, as a matter of fact it is pretty much all he does. The faux surge was based on a need to cover election promises more than a true faith effort to win the war.  He serves more as Campaigner in Chief than Commander and he hasn’t had anything to crow about since the “gutsy call” to go after bin Laden. And keep in mind that operation was called off multiple times at the behest of Valerie Jarrett and his political team. In the end the fear that his inaction in the face of opportunity would be leaked was a major factor in getting a greenlight at all. [Emphasis added.]

It may seem cynical to say this was a political ploy, but as the lawyers say “Cui bono?” who benefits? Obviously Bergdahl does, but from a national security perspective he is the only one. Well except for Obama. He gets a complete game changer and goes from the guy who presided over the VA debacle to the guy who saved our prisoner. Live POW trumps dead veterans any day. It also spins the news away from the constant parade of dismal failures: His crack team outing the CIA station chief in Kabul; Benghazi; the IRS; the ongoing train wreck of ObamaCare; even his media allies were laughing at his sad little non mea culpa speech at West Point; and his own designated liar, Jay Carney, finally ran dry and headed for the hills. Obama desperately needed a win and that was enough to push this awful deal over the top. On the losing side, the Afghans get rabid dogs of war let loose on them, American troops become more attractive targets for kidnapping, and the world sees us as the weak horse again. Bravo Barack! [Emphasis added.]

I agree, as far as it goes.

An article by Jonathan Turley on President Obama’s law-breaking: 

The mess also prompted Jonathan Turley to write President Obama Trades Al Qaeda-Linked Taliban Leaders For Release of American Soldier. He takes, strongly, the position that President Obama violated the law when he declined to put the matter before the Congress, as required by statute. Here is an excerpt:

Congressional leaders have warned that such trades only increase the incentive to capture U.S. soldiers and citizens around the world. The Taliban do not represent a nation state and many accuse them of regularly engaging in acts that would be deemed terrorism by the United States. The Obama Administration may be in the curious position of now insisting that they are freedom fighters or a legitimate military force rather than terrorists.

The federal law adds the obligation to notify congressional committees at least 30 days before making any transfers of prisoners with explanations of the conditions and arrangements for such releases. No such notice was given. While President Obama denounced signing statements by George W. Bush as a Senator and as a candidate for the presidency, he issued such a signing statement when the law was passed to say that the condition was unconstitutional as an infringement upon his powers as commander in chief. He appears in clear violation of federal law. I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. [Emphasis added.]

It is notable that Obama is again claiming near absolute executive power (and augmenting this claim with the use of the controversial signing statement tactic). He is claiming that Congress cannot limit — even with a notice requirement — his control over detainees at Gitmo. It is another glimpse into what I once called the “uber presidency” that has emerged under the last two presidents.

. . . .

The agreement only reportedly includes a one-year travel ban – making it likely that these Taliban commanders will be back on the front lines.

The Administration has been negotiating on this trade for sometimes — years according to some reports. Yet, it clearly decided to violate federal law and not inform Congress. [Emphasis added.]

I agree with Mr. Turley as well.

Neither article discusses whether military authorities will be allowed to court martial Sgt. Bergdahl. For him to be tried by general court martial — if the “scuttlebut” is true, no inferior court would be appropriate — the convening authority (a high-ranking general officer, often the post commander) would first have to appoint an Article 32 investigating officer. The Article 32 officer would then hear evidence and make recommendations to the convening authority whether to hold a court martial and, if one were to be held, the appropriate charges and specifications. The convening authority would then decide whether to convene a court martial.

It seems highly unlikely that a court martial will be convened so long as President Obama remains in office: there will likely be intense political pressures not to do it. Were Sgt. Bergdahl to be tried and found guilty of treason, desertion or other serious offense, President Obama would be greatly damaged politically. That’s a “no no.” However, if there is to be a court martial it has to be held soon because witnesses can forget or no longer be sure of what happened, die or otherwise become unavailable. There are also “speedy trial” issues, possibly more important in courts martial than in civilian criminal trials.

As I recall from my four years (nearly half a century ago) as an Army JAG officer, initially engaged in prosecuting and later in defending soldiers at general courts martial and later (during my second tour of duty in South Korea) presiding as a military judge at special courts martial, no convening authority has been disciplined for deciding not to convene a court martial. Some have been disciplined — demoted or kicked out of the Army — for pressuring the presiding judge or members of the court to “find the bastard guilty,” but never as far as I am aware for “If I had a son like *** he would look a lot like me, so find him not guilty.” For more about “command influence,” see here.

UPDATE:

FLASHBACK: The Obama White House Promised Not to Trade Terrorists for Bergdahl Without Consulting Congress

UPDATE, June 3, 2014:

An article at PJ Tatler by Brian Preston titled Read General Dempsey’s Stunning Statement on the Bergdahl-Taliban Swap quotes the Chairman of the Joint Chief of Staff as follows:

In response to those of you interested in my personal judgments about the recovery of SGT Bowe Bergdahl, the questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity. This was likely the last, best opportunity to free him. As for the circumstances of his capture, when he is able to provide them, we’ll learn the facts. Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family. Finally, I want to thank those who for almost five years worked to find him, prepared to rescue him, and ultimately put themselves at risk to recover him. [Emphasis apparently added.]

True, Sgt. Bergdahl is innocent until proven guilty. What Bergdahl may say is obviously relevant, but there appears to be much more relevant evidence that needs to be considered as well.

As noted in my article, time is of the essence and all relevant and competent evidence has to be considered; not merely that provided by the suspect. For the reasons also stated there, I very much doubt that Sgt. Bergdahl will ever face a general court martial, as he should; the potential damage to the Obama Administration is simply too great.

UPDATE, June 5, 2014 (Tip of the hat to Blackfive.):

UPDATE, June 5, 2014:

According to an article at the Daily Beast titled The Real Reason the U.S. Didn’t Rescue Bowe Bergdahl, reliant on unnamed Obama Administration sources, Sgt. Berghdahl escaped twice and was recaptured.

Is this more of the “Swiftboating” and “psychopath platoon leaders” stuff to which  the administration has resorted to quell public condemnation of the returned “hero,” said by Susan Rice to have served honorably and with distinction?

UPDATE, June 5, 2014:

An article by Bryan Preston at PJ Tatler titled Obama Admin Official Brandon Friedman Ramps Up Smears Against Bergdahl’s Squad Mates notes that

from one smear to another Obama’s minions are siding not with the soldiers who stayed on post and did their duty in Afghanistan, but with the soldier who thought the war was “lame” and is accused of deserting his duty, and possibly collaborating with the enemy.

How long will the Obama Administration continue to make “own goals?”

UPDATE, June 5, 2014:

An article at The Clarion Project titled Taliban Bolstered by U.S. Release of 5 Top Terrorists from Gitmo makes an obvious point: the deal

means that the U.S. did negotiate with terrorists, even though official U.S. policy is not to do so. The State Department reiterated this position in January 2013 when it was asked about releasing the “Blind Sheikh,” Omar Abdel-Rahman, who is in prison for the 1993 World Trade Center bombing. The response was, “The United States does not negotiate with terrorists.”

Terrorists around the world now know that is nothing but bravado. The Taliban didn’t have to pay a cost or make a major policy concession, like severing links with Al-Qaeda or agreeing to a ceasefire. If you want your captives back, kidnap Americans and be patient. That’s the lesson. [Emphasis added.]

Can the Obama Administration not have considered this likelihood? Does it not care, since most of the victims will be military?

UPDATE, June 5th:

An article at PJ Tatler by Bryan Preston is titled Obama’s Bergdahl Spin Just Gets Worse and Worse. It provides this talking point:

The Associated Press        ✔ @AP

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BREAKING: Officials: Congress not told of swap because Taliban threatened to kill Bergdahl if it leaked .

The article then points out,

it’s undone by the fact that the Taliban had run around killing people for five years, but had not killed Bergdahl when they had him in their clutches. They obviously had some use for him. He was, at least, a bargaining chip. Had they killed him, they had reasons to expect a drone would be on its way to retaliate. In fact, the Taliban apparently warned the US that some of our drones nearly killed Bergdahl more than once. The Taliban were going out of their way to keep him alive. They had been wanting to deal him out for years. So, they would kill him if Dianne Feinstein or Ted Cruz suddenly started talking about a swap? Really? Does anyone believe this other than the most feverish Media Matters videobot?

I join Ed Morrissey in mocking this latest talking point for the nonsense that it is. These people are going to have to come up with a new lie. Which, rest assured, they will. There is some reason that they keep telling one ridiculous lie after another. The truth they’re covering up must be even worse than most of us speculate. [Emphasis added.]

UPDATE, June 5th:

According to Fox News,

U.S. Army Sgt. Bowe Bergdahl at one point during his captivity converted to Islam, fraternized openly with his captors and declared himself a “mujahid,” or warrior for Islam, according to secret documents prepared on the basis of a purported eyewitness account and obtained by Fox News.

The reports indicate that Bergdahl’s relations with his Haqqani captors morphed over time, from periods of hostility, where he was treated very much like a hostage, to periods where, as one source told Fox News, “he became much more of an accepted fellow” than is popularly understood. He even reportedly was allowed to carry a gun at times.

The legitimacy of the report seems questionable, but will the matters it raises be investigated by the Obama Administration or ignored?

UPDATE, June 5, 2014

Here’s a pertinent Bill Whittle video:

Of course, President Obama would never lie; not even for political purposes. Doing so might hurt His public image. Is he evil or incompetent? Yes, and probably both.

UPDATE, June 5, 2014

According to Washington Examiner,

A former Veterans Affairs official apologized Thursday for suggesting that Army Sgt. Bowe Bergdahl may have left his post in Afghanistan five years ago because he was surrounded by “psychopaths.”

“While I just wanted to make the point that the public should wait before passing judgment, I unfortunately used my own poor judgment in choosing inappropriate language that many view as disparaging to U.S. service members,” Brandon Friedman, who currently serves as a spokesman for the Department of Housing and Urban Development, told BuzzFeed.

“That was certainly not my intent and I regret making the comments on my personal account in such a way. I apologize to those with whom I work in the Administration, at HUD, and, most importantly, to any service members who took offense,” he said.

When can we expect President Obama to apologize? Don’t hold your breath.

UPDATE, June 6th

An article at PJ Media by Robert Spencer is titled 5 Indications that Bowe Bergdahl Is a Traitor. After listing and explaining the five indications, it notes

The chairman of the Joint Chiefs of Staff, General Martin Dempsey, has said that “it’s premature” to assume that Bergdahl will not be investigated. Still, although it would be the just and proper thing to investigate Bergdahl for both desertion and treason, it does seem unlikely that he will be investigated for either. Such an investigation would embarrass the Obama administration even more than it has been already and the mainstream media will do all it can to make sure that such humiliation is kept to an absolute minimum. John Boehner, for his part, will just burst into tears and give Obama whatever he wants. [Emphasis added.]

To investigate, much less to try Bowe Bergdahl, despite the fact that evidence of his misconduct continues to mount, would require an honest president, a robust opposition party, and a media determined to uncover the truth. Strike one, strike two, strike three.

I agree.