Obama Likely Violated Federal Law in Deal He Cut With Bergdahl's Captors

The law prohibits providing material assistance to a terrorist organization, which is what Obama did in releasing five untried Taliban leaders.

White House/InstagramWhite House/InstagramOn the same weekend that the Secretary of Veterans Affairs resigned amidst the scandal of veterans dying before the government's doctors could treat them in government hospitals, on the heels of another revelation of unconstitutional NSA spying in which federal agents have been seizing the digital images of our loved ones and friends that have accompanied our emails, and a week after the White House intentionally or negligently revealed the true identity of the CIA station chief in Afghanistan, President Obama announced a new foreign policy initiative called "No One Left Behind." The reference was to the sole service member then held in captivity in the venue of America's longest war, the one most Americans have forgotten: Afghanistan.

Late last week, Obama announced the release of Sgt. Bowe Bergdahl, who had been held by the Taliban for more than five years. Bergdahl apparently shed his weapons and equipment, sent his personal belongings home, and walked into the hands of his captors one day, unwilling to remain a part of his military unit and largely ignorant of the fate that faced him. The president must have been determined to bring Bergdahl home at all costs, because the manner of his doing so makes it likely that he violated federal criminal law in the deal he cut with Bergdahl's captors.

The government apparently negotiated with the Taliban, a group characterized by federal law as a non-state terrorist organization. The deal required the U.S. to release five former senior Taliban intelligence and military officials from the American prison camp at Guantanamo Bay, Cuba. Therein lies the legal and constitutional conundrum generated by the post-9/11 contempt for the Constitution that has been a hallmark of Congress and the Bush and Obama administrations.

The concept of Gitmo as a holding facility of endless duration for uncharged and untried human beings is unrecognizable when viewed through the prism of the Constitution, and in all five cases in which this concept was addressed by the Supreme Court, the court directed the government to put the detainees on trial before a neutral public tribunal using rules that were in place before the detentions began. Both administrations have been averse to public trials, preferring to keep secret their own behavior in the manner of arresting, detaining, and interrogating these people. As a result, few trials have been held, only two people have been convicted, and both of them were released based on the prison time they had already served.

Yet the release of these Taliban leaders in a prisoner swap materially assists the Taliban in such a way as to be criminal. How can it be criminal to release a prisoner? It is not a crime to release a prisoner who has been acquitted, but it is criminal to release an untried prisoner whom the government reasonably believes will aid a terrorist group. Federal law prohibits any person from providing material assistance to a terrorist organization, even if the organization fails to use the assistance, and even if the use of it produces no measurable harm.

Material assistance includes anything from money to maps to professional services; it includes the appearance of support and even a false belief in support. It was intended to criminalize intentionally causing any assets of value to come into the control of any non-state terrorist group that American law has condemned.

This is the same statute that the courts have interpreted so broadly that merely listening to a harangue by a terrorist leader at his training camp, without any further behavior, is considered providing material assistance to the group that runs the camp. If hard assets like money and political support are covered by the statute, then human assets are covered, as well. This is the same statute that has been employed successfully to prosecute those who fall victim to FBI stings, in which the defendant typically is a dim-witted person led by FBI agents to believe falsely that he is assisting a terrorist group, but no actual assistance ever flows to the group.

The president no doubt will argue that under the Constitution he and he alone makes foreign policy and, as well, as commander in chief of the military, he enjoys the constitutional authority to make these prisoner swaps. Yet, the president has sworn an oath faithfully to enforce all federal law. He cannot knowingly or legally exclude himself from the obligation to comply with laws with which he disagrees—that's the Nixon argument ("when the president does it, that means it's not illegal"), which the courts and modern history have rejected.

The president has a serious problem with competence and with fidelity to his oath. In one week, he has alienated and demoralized much of the intelligence community by revealing the true name of one of them and by releasing their worst nightmare back into the theater of Middle East warfare. He has, as well, flagrantly failed to enforce federal law by materially aiding a non-state terrorist group condemned by American law. This is almost inconceivable in an American president.

Yet it is almost predictable with this president. In our Orwellian post-9/11 world, Congress thinks it can alter basic constitutional principles, and the president thinks he can enforce only the laws he likes. Did we break away from a king, who thought his powers were given to him by God, 240 years ago only to elect a president who behaves like a king? Thomas Jefferson saw this coming in his final years, when he argued that an elected despot is not the government we fought for.

It surely is not the government Jefferson fought for; but today, it is the government we have.

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  • Notorious G.K.C.||

    What about the 30-day notification law? Not only does it require notification of Congress 30 days before release of Guantanamo detainees such as these guys, but it also requires a report on the reasons for the release and the various factors involved. (see sec. 1035)

    http://www.gpo.gov/fdsys/pkg/B.....304enr.pdf

  • Will4Freedom||

    Didn't he tell congress he was thinking about a trade at one time. In his mind, that should be enough.

    I tell you, I seriously fear for the future of the US.

  • Ted S.||

    Can't he just say he was pardoning them? The Constitution gives the President quite broad pardon powers.

  • Notorious G.K.C.||

    I'm not sure - but anyway, I don't think he tried to justify his action on those grounds.

    Would it be in his interests to acknowledge the Guantanamo prisoners as criminal defendants? It would suggest that the detention is illegal unless they've been convicted or are awaiting trial.

  • ||

    I don't think you can pardon someone prior to them being charged and convicted if a crime. And since our government has taken pains to not charge so many of these prisoners, I think that excuse is right out.

  • tarran||

    Sure you can.

    Ford did it to Nixon.

  • Cyto||

    The Presidential pardon is like a Catholic indulgence. It is a magic get-out-of-jail-free card. The President can issue a blanket pardon on a person for any and all crimes committed at any time in the past if he wants to. That person will then be magically innocent of any and all crimes, proven or unproven, charged or uncharged.

  • MJGreen||

    Look, it was an oversight. Happens to the best of us.

    Like the other day when I was driving 30 mph above the speed limit. I explained to the officer that it was an oversight and we went our separate ways.

  • SugarFree||

  • WTF||

    Since congress is unwilling to hold him accountable by impeachment, Obama damn well can do anything he wants, the law be damned.

  • Hyperion||

    first.black.potus.

    Nuff said.

  • WTF||

    Yeah, the left was right about the country not being ready for a black President, just not for the reasons they assumed.

  • Ivan Pike||

    I think it has more to do with the iron laws. You today/Me tomorrow. They want the power for when there person is in there.

  • sarcasmic||

    Yep.

  • Harvard||

    A case the first could be made we have the first:

    Black President

    Gay President

    Female President

    Might we return to old white men please??

  • sasob||

    I don't think it has anything to do with him being black.

  • Stephen54321||

    What has being black got to do with it?

  • Hyperion||

    Oh, and all of our favorite GOP congress critter, with the initials LG, said 'if you do it again, we'll impeach you!' Sure Lindsey, you're so cute, now run along and stfu.

  • Ted S.||

    He can't impeach the president anyway, since that's a function of the House, not the Senate.

  • Scruffy Nerfherder||

    They won't attempt an impeachment before the mid-terms unless they've got him dead to rights and popular opinion fully supports it. They believe it will hurt their chances. Politics before principles.

  • Stephen54321||

    That could said of many presidents. You might well ask why George W. Bush was not impeached for sanctioning torture, rendition, and lying to Congress about going to war in Iraq?

    Not to mention setting up the gulag at Guantanamo Bay, the warrantless wiretapping scandal, and his use of signing statement.

    Those sorts of things set precedents which future presidents will doubtless one day build on--just as Obama's refusal to prosecute CIA personnel for torture and his use of drones to murder US citizens and others in non-war zones in foreign places, without charge or trial, are also terrible precedents which will may come back to haunt the US in the future yet Congress has made no attempt to curb, much less punish.

  • x4rqcks3f||

    Federal law prohibits any person from providing material assistance to a terrorist organization

    The federal government has no Constitutional authority to enact such a law, unless you're calling it treason, which is a stretch. Obama is a lying, murdering, thieving half-wit. There's plenty to condemn him for without this.

  • Fist of Etiquette||

    Uh, the Commerce Clause?

  • Ivan Pike||

    The federal government has no Constitutional authority to enact such a law, unless you're calling it treason, which is a stretch.

    Yes, they can pass that law as it comes from Article 3, Section 3. But the terrorist org has to be fighting the US.

    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
  • Slammer||

    The WH consistently puts out the creepiest pictures. What it that image supposed to convey?

    "I'm forced into constant Constitutional Violations, but please try to understand?"

    Or, "I am the Light Bringer. This is my Meditation/Yoga pose."

    Or, "One day, Schumer's moobs will be down to here?"

    They're so obsessed with his imagery, but I can never quite figure it out. Maybe that's the point.

  • SusanM||

    "seriously, that goatse guy was like this"

  • Elizabeth Nolan Brown||

    I would like to note that I picked out the image to go with this article, and yes, it was chosen for creepiness factor. I think "I'm forced into constant Constitutional Violations, but please try to understand?" is probably a pretty fair assessment.

  • Ted S.||

    Then why didn't you put that into the alt-text? ;-)

  • AlmightyJB||

    You're supposed to read her mind Ted. Do you know nothing about women? TWTANFL.

  • Elizabeth Nolan Brown||

    We are only allowed to create alt-text for our own posts, alas.

  • ||

    Next tine you do this sort of article, please choose this image. Please

  • From the Tundra||

    I kind of like the mulitcultural orgy/taco bar theme in this one:

    http://boingboing.net/2010/03/.....f-bar.html

  • Otisjay||

    .... yes, oh lord yes.

  • Sevo||

    ..."it was chosen for creepiness factor."...

    Give yourself a gold star.

  • SugarFree||

    "I can feel America's third row of boobs."

  • Zombie Jimbo||

    They photoshopped out the faces he drew on his hands with a marker. He was having an argument with himself over the constitutionality of his actions. He'a also an excellent ventriloquist.

  • antisocial-ist||

    It seems more likely that he's saying something along the lines of: Sign here and here. Your blues guitar fame should arrive in 6-8 weeks.

  • Fist of Etiquette||

    Alt text: "Let me be clear. Doing this, while receiving a lap dance, will get you removed from almost any titty bar."

  • Matrix||

    It seems a lot of Leftists are ready to die on this hill. It is glorious to witness. Oh, they point to a few articles from Conservative bloggers that stated a few years ago they wanted to rescue this guy using force. So Obama trading 5 incarcerated terrorists in exchange for a deserter is even BETTER than using force to rescue him.

    I mean, there is absolutely NOTHING this guy cannot do that will make the TRUE BELIEVERS change their opinion about him. I'm serious when I say he could take a baby and sacrifice it on national television to Molech, and the lefties would still be singing his praises or deflecting about how "Bush killed far more babies with his wars in Iraq and Afghanistan."

    Nothing is too much for these people. Nothing.

  • TwB||

    I completely agree. I made a similar comment to a friend of mine, I said that Obama could punch a small child in the face on the front lawn of the White House in front of the entire press corps and nothing would be done about it. Nothing. I say put a crown on Obama's head and give him a long fuzzy cape and be done with it. I swear that's what he wants anyway.

  • Drake||

    Obama could care less about the law. What amazes me is that he thought this was going to be a publicity win.

    Did nobody tell him that Bergdahl was a deserter? He announced this thing like it was a big celebration and wasn't prepared for the criticism any Veteran could have told him was coming. It has now screwed up his while Eastern European trip. We are governed by idiots.

  • Scruffy Nerfherder||

    The only way they could fuck this up so badly is if they truly didn't listen to anyone outside their immediate political circle. This incident is complete proof that they are working in a bubble.

  • wareagle||

    Did nobody tell him that Bergdahl was a deserter?

    there are two other options: they told him but the Ego in Chief said FYTW, or they didn't know about it. Neither is any more comforting than your scenario.

  • AlmightyJB||

    Given it's Obama people should be glad he didn't put the 5 guys in charge of the pentigon.

  • AlmightyJB||

    Or even the Pentagon.

  • Rich||

    Yet it is almost predictable with this president.

    FTFY, Judge.

    On second thought, to be fair, it's "almost predictable" in the sense that, say, hurricanes are "almost predictable". We don't know how many scandals there will be, or what damage they will cause -- but we're reasonably certain there will be several, and of those, some that will prove catastrophic.

  • Harvard||

    I was skeptical about his "credentials". I was a racist.

    I was conflicted about his citizenry, based simply on the evidence, and lack of. I was a birther.

    I suspected he could be a Muslim, at the very least a sympathizer. I was a hater.

    At the risk of certain social invitations, I'm going with all three.

  • american socialist||

    So you are a racist, crackpot hater. Way to go! U.S.A. U.S.A.!

  • Stormy Dragon||

    The government apparently negotiated with the Taliban, a group characterized by federal law as a non-state terrorist organization.

    This isn't actually true. The Taliban isn't on the US's list of designated terrorist organizations:

    http://en.wikipedia.org/wiki/L.....anizations

  • Stilgar||

    By the logic the judge is putting forth here, no prisoner release is permitted unless they are first put on trial.

    There have been many releases from Gitmo over the past decade and not all of those released would fall under the category of 'oops our bad you are in no way, no how involved in any evil doing!'.

    This is purely opportunism by the R's. McPain of all of them is the biggest dope for now being against what he seemed quite ok with earlier.

  • Tony||

    More than 500 Gitmo prisoners were released under Bush. The supposed law being violated exists for the single purpose of preventing Obama from doing the right thing and shutting this concentration camp down. But I'm so pleased to see libertarians jumping onto the WOT bandwagon. As long as it means Obama gets what's coming to him.

  • SugarFree||

    Fuck off, you lying cunt.

  • american socialist||

    Fuck off, Tony. That's because all the people in GITMO are guilty. I just know it. You and your pie-in-the-sky due process and Bill of Rights.

  • Sevo||

    You know who else didn't have any divisions...

  • Harvard||

    Early NFL?

  • LancelotLink||

    So they say Snowden should be hung for putting Americans' lives in danger, but Obama materially aids a terrorist group and...nothing? Am I missing something?

  • american socialist||

    Obama's feckless and ineffective leadership has led to a lose of faith in American power and its ability to interject American power overseas. What a second... libertarians aren't for a loss of American power and an ability to interject American power overseas? I know I am, but-- you know-- I'm only a libertarian socialist and not a socialist libertarian so what do I know. Please advise.

    Andrew, do you still hate WTC 7 and Abraham Lincoln or no? I'm spinning my finger around my temple in anticipation of what you might say. In any case... its mosdef time to send Geraldo to investigate!

  • wadair||

    I'm only a libertarian socialist

    These are mutually exclusive.

  • ||

    AS might believe in socialism AND the non-aggression principle. Not sure how that works out in practice though.

  • american socialist||

    See Denmark.

  • Sevo||

    See 5 people who are related.
    And then see North Korea, asshole.

  • american socialist||

    And after that Germany.

  • ||

    I wonder, are we going to wind up with two Democrat Presidents in a row impeached?

  • On The Road To Mandalay||

    In the great sweep of history it will not really matter what this much maligned President did or did not do regarding Afghanistan. All he is doing is continuing a war started by that military and naval genius George Bush and that great conqueror Dick Cheney.

    When the U.S. does leave Afghanistan what will happen is that the inept Puppet Government there will get into a Civil War with the religious fanatics of the Taliban, which could last for many years. What's new? Nothing much at all, because all attempts to take over this country by the great powers have failed.

    Russia (then the Soviet Union) was defeated there during the 1980s (see Movie "The 9th Company" for "fun"), The British had their rear ends kicked by the Afghans during the 19th and 20th Centuries in three Anglo-Afghan Wars.

    The U.S. went there to catch the bad guys who crashed the planes into the towers and took years to find the head guy anyway.

    The war goes on with no end or victory in sight, and the Americans find out that Pakistan is not the good buddy we though it was. A lot of blood has been shed as usual because of our ignorance of history and a blind belief in American Exceptionalism. At least the stupidity is consistent and predictable.

  • Edwin||

    maybe that's the point

    all the middle east being in civil wars means they're distracted from fucking with us

  • jmomls||

    *The U.S. went there to catch the bad guys who crashed the planes into the towers and took years to find the head guy anyway.*

    Only because nuking Mecca, Medina and Teheran weren't options.

  • american socialist||

    Judge,

    Sic semper tyrannis, amirite?

  • Erasmus vs. Luther||

    So you promote the doctrine of killing figureheads because of there blatant disregard of a nation's written laws? I know you were being facetious, but tread carefully. Posting the wrong combination of words could place you on an arbitrary watch list. The overreach of one branch of the federal government, despite it's best intentions(a dubious proposition to say the least) should always be responded to with vitriol.That's kind of the point of this article.

  • american socialist||

    Libertarians care about separation of power? Other than the bill of rights I don't care one bit about the constitution. I'm for asking Great Britain for readmittance. Releasing people who have not been charged with a crime is something libertarians should be against?

  • kenezen||

    The good judge goes judiciously and therefore not far enough. This president doesn't do anything for less than social philosophy or money. Two things should be therefore requested by the people to the President. One: why would 35 seconds be too much for a phone call to the Senate according to the law?! Second The president has the first 501c4 in the history of presidents. Open the books and let us see and audit the payments and donations made! Your folks promised they would open the books to audit if ask! How about it??

  • RogerN||

    Of course he broke the law, that what he does.
    He's gotten away with it for so long, he knows that nobody will stop him.

  • roth||

    I don't get it. Why not try the detainees ( prisoners ) What do they have to say that the government is trying to hide. ?? The fact that we started the war ?? Who knows? They should be on trial so we can know the truth. The fact that they won't try them makes me suspicious that the US Government is trying to hide truth about 911 still.

  • Stephen54321||

    "Yet the release of these Taliban leaders in a prisoner swap materially assists the Taliban in such a way as to be criminal. How can it be criminal to release a prisoner? It is not a crime to release a prisoner who has been acquitted, but it is criminal to release an untried prisoner whom the government reasonably believes will aid a terrorist group."

    Where is the evidence that the five people in question would "aid a terrorist group" if released? More to the point where is the evidence that "the government reasonably believes the five would aid a terrorist group"?

    Moreover, the argument seems to be suggesting that once the government forms an opinion that a person "will aid a terrorist group" it cannot change its mind. The only way out for the individual (or, for that matter, the government) is a trial and an acquittal.

    Perhaps this "reasonable belief" notion is being confused with being INDICTED. It is one thing to charge a person with a crime then being obliged to put them on trial. But that is not what is being argued here.

    Further, how does one know this "reasonable belief" exists? Does it require a formal statement from "the government" attesting to the existence of that "reasonable belief" or does the mere fact of incarceration (be it in Guantanamo Bay or elsewhere) suffice?

    That, of course, would not merely be a presumption of guilt but also guilt-by-association. The mere fact being interned (and in Guantanamo in particular) suffices.

  • Stephen54321||

    "Yet the release of these Taliban leaders in a prisoner swap materially assists the Taliban in such a way as to be criminal. How can it be criminal to release a prisoner? It is not a crime to release a prisoner who has been acquitted, but it is criminal to release an untried prisoner whom the government reasonably believes will aid a terrorist group."

    I would argue the five prisoners in question are prisoners-of-war. The were captured during the US's invasion of Afghanistan. Prisoners-of-are generally NOT charged with ANY crime (unless it's a war crime). They are detained until the war concludes, then they are released and repatriated to their home countries.

    The US is the process of winding down the war in Afghanistan.

    To argue that it's a crime to release prisoners-of-war when a war is in the process of ending then presumably it was equally a crime to for the US and its allies to release all those other POWs at the conclusion of all those wars it has been involved in. World Wars 1 & 2, for example. Were those release also criminal acts?

    True, two of the five have been accused of war crimes by the UN, but these seem to relate to events back in the 1990s, NOT the post-2001 period. Since the US has had over a decade in which to hand them over to the UN for trial, one can only suppose the US did not take those accusations seriously.

  • Stephen54321||

    "Yet the release of these Taliban leaders in a prisoner swap materially assists the Taliban in such a way as to be criminal. How can it be criminal to release a prisoner? It is not a crime to release a prisoner who has been acquitted, but it is criminal to release an untried prisoner whom the government reasonably believes will aid a terrorist group."

    judge Napolitano's entire argument seems to presuppose that the five are subject to US DOMESTIC (federal) criminal law, as implied by his use of the word "acquitted". Which is kind of strange given that the entire point of using Guantanamo Bay in the first place was to keep the people interned there OUT of US domestic law, and in particular amendments 5 and 6 of its Constitution!

    The five have been in US custody for over a DECADE yet AFAIK no charges have ever been filed against them, terrorist related or otherwise.

    It was Cheney, if I remember rightly, who first used the phrase "worst of the worst" to characterise the prisoners in Guantanamo Bay, and thereby forever smear and impugne them in the eyes of his countrymen as heinous criminals unworthy of mercy, let alone justice.The outcome has been a modern US equivalent of the notorious Black Hole of Calcutta, and in particular a place intended to be beyond the reach of US law--and yet here we have Judge Napolitano invoking the letter (but not the spirit!) of US law to condemn as CRIMINAL the release of prisoners held there, without charge or trial, for over a decade.

  • Stephen54321||

    Apoogies for the three separate posts above on the same topic. They were intended to be a single post but I ran into reason.com's 1500 character limit!

  • Stephen54321||

    "It was intended to criminalize intentionally causing any assets of value to come into the control of any non-state terrorist group that American law has condemned."

    I would argue that the US government has no such power, if only because making such a condemnation, and doing so without judicial trial, would arguably breach art 1, sec. 9, para. 3. "No Bill of Attainder...shall be passed."

    You might prosecution someone, or some organisation, for terrorist acts, but they cannot simply be declared to be terrorist (==guilty of terrorism) and impose sanctions against them. That would arguably constitute a bill of attainder.

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