Afghanistan

7 Libertarian Arguments About Bowe Bergdahl

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The Bowe Bergdahl prisoner-exchange case has been riveting to watch unfold in part because of the many fissures within public opinion it exposes, not least among libertarians. For instance, Antiwar Radio's Scott Horton called the following criticism of mine about the illegality of President Barack Obama's non-notification to Congress "shameful," and gave me a hashtag #puke:

To which one wag piled on:

Prison Camps are fine according to @mleewelch as long as pot is legalized. The warblogger really strikes the root!

Totes, bra!

Bergdahl brings up a variety of issues worth treating separately, and in fora longer than two-minute broadcast spiels. To work through some thinking about this, and hopefully extend the controversies, here's my list of seven points worth considering about this case, beginning with a disagreement I have with a conclusion made right here at Reason.com by the great anti-interventionist Sheldon Richman.

1) We should blame Bowe Bergdahl if he deserted, because there are other choices for opting out of our all-volunteer military.

Richman, in a piece titled "Why You Shouldn't Blame Bowe Bergdahl for Deserting in the Fog of Endless War," is absolutely right (IMO) that war is hell, full of morally dubious choices, and that there's no good goddamn reason for the United States to have been fighting in that country since 2002. But there is a considerable gap between "wondering what the point of the war" is and the first paragraph of this New York Times article from Monday:

Sometime after midnight on June 30, 2009, Pfc. Bowe Bergdahl left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life. He slipped off the remote military outpost in Paktika Province on the border with Pakistan and took with him a soft backpack, water, knives, a notebook and writing materials, but left behind his body armor and weapons — startling, given the hostile environment around his outpost.

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The fog of war and the slipperiness of early-cycle news of battlefield controversies tell us we should exercise skepticism about these widely reported claims (and note that today's Times article supplants some of these details while shedding doubt on some others), but if the desertion narrative is broadly true, then Bergdahl made a grave error of judgment.

Why? Because if you want an all-volunteer military—and since the practical alternative to that is involuntary conscription—then you damn well better have a code of conduct precluding people from just wandering off near or into enemy territory when the disillusionment gets too strong.

There are many ways to leave the battlefield, come home from a deployment, or exit the military altogether, not least of which is applying for conscientious objection or some of the many other categories of voluntary separation. The process is far from frictionless, and certainly lacks the grand gesture and immediacy of mailing your stuff back home and then peacing out into the wilderness, but it packs just as much moral significance while being far less dangerous for you and your comrades.

Now, maybe you think it's the universal soldier who really is to blame, in which case desertion may seem like the only honorable end to an otherwise wholly dishonorable vocation. But surely even that utopian (or dystopian) view would prefer a man seceding from his commitment peacefully and going home rather than being snatched and mistreated by another paramilitary unit for five years?

2) No one is saying that we should have left Bowe Bergdahl behind.

I've spent hours searching for anyone of significance saying on the record that the de-motivated so-and-so shoulda been left to rough it with his Taliban captors, and found nothing except for bad Chris Hayes Tweets and huffy Obamaite declarations about how "We still get an American soldier back if he is held in captivity. Period. Full stop."

Well yes, it's right there in the Code of the United States Fighting Force:

Just as you have a responsibility to your country under the Code of Conduct, the United States government has an equal responsibility—to keep faith with you and stand by you as you fight for your country. If you are unfortunate enough to become a prisoner of war, you may rest assured that your government will care for your dependents and will never forget you. Furthermore, the government will use every practical means to contact, support and gain release for you and for all other prisoners of war.

So the question isn't whether, it's how, both cost-wise and procedurally. And before we get to those considerations, it's important to acknowledge another piece of complexity.

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3) Bringing American hostages home is damn difficult work.

Ask Jimmy Carter or the ghost of Ronald Reagan: Trying to secure the freedom of captive Americans is politically, operationally, and ethically perilous business for U.S. presidents. Take a look at Richard Nixon's Operation Ivory Coast sometime, or go down the anti-Clinton rabbit hole about Navy Lt. Commander Scott Speicher.

Obama administration officials are now saying that Bergdahl's life was in immediate danger, and that the situation was too delicate for any informing-Congress-as-is-required-by-law stuff (though those claims, too, have been contradicted by other administration officials). While there's every reason to be suspicious of the administration's justifications (on which more at #4), any sense of fairness requires acknowledging the degree of difficulty and managerial anguish that comes with the task of freeing hostages.

4) It matters that Obama violated the law in a way that aggrandizes executive power, which is a pattern for him despite his 2008 campaign to the contrary.

Conor Friedersdorf makes this point pretty well in a post from Wednesday:

The law requires 30 days' notice to Congress before a Gitmo detainee is transferred or released. The White House has now brazenly flouted that requirement. And the precedent being set by Team Obama is problematic in the same ways as the executive-branch power grabs that happened during the Bush Administration. In fact, Senator Obama was a critic of the logic he has now shamelessly adopted. He decried signing statements, for example, but cites a signing statement of his own as if it is a defense against violating the plain text of what he signed.

The illegality of the Obama Administration's actions is underscored by the way their story keeps changing. The White House began by hinting that the 30-day notification requirement is unconstitutional. But it is unwilling to press that claim. Its current position is that Congress didn't intend the law to say what it says.

You might think a law requiring 30 days notice before the president releases a Gitmo detainee is foolish, and/or that the prison itself should be closed. That still does not change the fact that it is a law, and a law that President Obama voluntarily signed. If you believe, as I believe and candidate Obama professed to believe, that the executive branch in the U.S. government has swollen all out of constitutional proportion, particularly in the conduct of an open-ended war, then the only way you can arrive at indifference to his latest contravention of law is by either A) swallowing his latest justification whole, or B) deciding that constitutionality and rule-of-law matters less when you happen to agree with a president's actions.

Let us recall this Obama exchange with Charlie Savage in 2007:

Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

I will not use signing statements to nullify or undermine congressional instructions as enacted into law.

That's not the only relevant passage from Obama's executive-power questionnaire. As I wrote in this November 2013 column,

Obama declared to The Boston Globe that "the president does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

Yet in 2011 the president did precisely that. Not only did he bypass Congress in authorizing the U.S. military to help topple the Libyan dictator Muammar Gaddafi, but he flagrantly defied Congress several months later after it voted 295-123 to reject further authorization of lethal U.S. force there.

"The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization," the administration stated in a dismissive letter, "because U.S. military operations are distinct from the kind of 'hostilities' contemplated by the Resolution's 60 day termination provision."

I do not see how you can oppose war yet shrug at executive power-grabs.

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5) The Guantanamo Bay detention facility should and can be emptied and slated for closure by President Obama, even though it's practically difficult and almost certain to release future murderers onto the world.

How do you close Guantanamo over the wishes of congressional Republicans who'd rather just jail suspected bad guys indefinitely without trial? Human Rights Watch Counterterrorism Advisor Laura Pitter wrote a good column about this for Foreign Policy 11 months ago. Excerpt:

For one, it can begin to transfer the 86 of the 166 detainees [note: those numbers have been reduced to 78 and 149 in the meantime] at Guantanamo already slated for release to their home or third countries. In 2011 and again in 2012, Congress enacted some restrictions on the transfer of detainees from the facility, but those restrictions are not insurmountable. They require receiving countries to take certain steps to ensure that those being transferred do not engage in terrorist activity and that the secretary of defense certify such steps have taken place. If, however, the secretary of defense cannot, for one reason or another, certify those steps have been taken, he can waive the certification requirement in lieu of "alternative actions"—a term which has no clear legal or procedural definition. The only guidelines are that they "substantially mitigate" the risk that the detainee being transferred may engage in terrorism. Clearly then, the administration's ability to transfer detainees out of Guantanamo exists now, even with congressional restrictions. And with Obama again reiterating that keeping Guantanamo open harms U.S. security, the certification—and even more so the waiver—process seems to offer a clear path forward to emptying the facility of more than half its prisoners, if not closing it down.

Sen. Lindsey Graham (R-S.C.N.C.) for one thinks Republicans will start talking impeachment if Obama releases more prisoners, but that's all it is: talk. The law requires prior congressional notification, not approval. George W. Bush released 600 prisoners from Gitmo, the vast majority of which were never charged, and Republicans then were not squawking about executive-power abuse. It is also true that the "worst of the worst" among the ones who remain are the most difficult to figure out what to do with.

Will some of those suspected terrorists go on to get all murdery? Certainly:

[A]ccording to the most recent version of a biannual report published by the Office of the Director of National Intelligence and required by Congress[, of 614 Gitmo detainees that have been released], 104 — about 16.9 percent — are confirmed to have returned to terrorist activity of some kind, the report says. An additional 74 former detainees — 12.1 percent — are suspected of engaging in terrorist activities after their release, defense officials say.

Pitter argues that "these claims have been discredited," and that "Independent, credible analyses of those figures by researchers at the New America Foundation indicate the number is more like 6 percent, or 1 in 17." More importantly:

Even if the Pentagon figures were true, clearly the vast majority of people released from Guantanamo have not engaged in terrorism; in fact, it's well below the estimated 60 percent U.S. recidivism rate for criminal convictions overall. There are many people in the world who may commit crimes in the future, but the United States has not locked them up indefinitely. The bottom line is that the administration needs to assume some risk that those released may become involved in terrorism—even though that risk is objectively low. But even on a purely moral level, the fear that someone may engage in terrorist or criminal behavior in the future is not a legitimate basis for prolonged indefinite detention.

When it comes to terrorism, apples-to-apples rates of recidivism may not be possible—all it takes is one murderous nutbag to kill scores of people, the "worst of the worst" are probably going to be worse than the first ones released, and it's important to be clear-eyed about the risk here.

But one risk that rarely gets mentioned by War on Terror hawks is the (to my mind) equal certainty that other people around the world will be inspired by the existence of America's Kafkaesque prison to commit murder against Americans. Put another way, we will be able to "see" acts of terrorism committed by those who are sprung from Gitmo, but the "unseen" acts of terror that are partly motivated by the U.S. conducting itself as a superpower above the law are no less real.

It's a messed-up paradox, and one of Republicans' making. Maybe next time we'll think a bit more through the problem of snatching and torturing people and then realizing that such treatment makes them damnably hard to stand even military tribunals.

6) This whole exercise is a reminder that you should never declare an open-ended war against a loosely defined non-country.

What do you do at the end of a war with an actual country? Sign a peace or hostilities-cessation treaty, and exchange any outstanding prisoners. The Sept. 14, 2001 Authorization for the Use of Military Force, by contrast, empowers the president to

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The mission creep is baked right in there, with the latitude-expanding words "determines," "aided," "harbored," "such," and "prevent." As Eli Lake wrote presciently for Reason back in 2010,

As long as this authorization of force remains the law of the land, any change in the legal conduct of our open-ended, undeclared war will be, at most, cosmetic. Although it's true that President Obama appears more reluctant to use these extraordinary powers than his predecessor, he is nonetheless asserting, enthusiastically at times, that he has such powers. And because so much of the American war on terror is conducted in secret, it is difficult to know what Obama is and is not doing to wage it.

What's more, the word "terrorism" has some important legal meaning in the United States, since it's against U.S. policy to "negotiate with terrorists," and there are all kinds of automatic consequences that go with designating different groups in different categories:

[On] Tuesday White House National Security Council spokesperson Caitlin Hayden noted that the Taliban was added to the list of Specially Designated Global Terrorists (SDGT) by executive orderin July 2002, even if it is not listed as a Foreign Terrorist Organization (FTO) by the State Department. Either designation triggers asset freezes, according to the State Department, though they can differ on other restrictions imposed on the target organization. The Treasury Department told ABC News the Taliban is still on their SDGT list.

Right. So this is why you have such verbal gymnastics as this bit from White House Spokesman Jay Carney:

When asked if the United States had "negotiated with terrorists" for Bergdahl's release by promising the reciprocal release of prisoners from Guantanamo Bay, Carney said that was not the case. "He was not a hostage," Carney said of Bergdahl. "He was a prisoner." […]

"Why not just call this what it was?" Cuomo asked. "You negotiated with these terrorists because he is a prisoner of war and you have this pledge of leaving no man or women behind?"

"The fact is he was held in an armed conflict with the Taliban," Carney said. "We were engaged in an armed conflict with the Taliban, and we have a history in this country of making sure that our prisoners of war are returned to us."

The U.S. argues that its soldiers should be given full Geneva Conventions protections, but that Gitmo prisoners should not. This legal asymmetry (which, let's acknowledge, arises in part from the existence of trans-national terrorist groups that have proven able to kill thousands of Americans), coupled with triggered consequences of designating various groups as "terrorists," basically ensures that any presidential action to secure an American prisoner in the War on Terror will lead to torture of the English language, and opposition accusations of lawbreaking.

What if America had just declared war against Taliban-run Afghanistan? Perhaps this negotiation would be a lot more straightforward, though it would also result in more, not fewer, releases of dangerous prisoners from Guantanamo Bay. As David Brooks points out today, Israel for one has engaged in far more numerically lopsided prisoner/terrorist exchanges than this.

7) Susan Rice needs to spend more time at home with her family.

It's hard to know what a person has to do to get fired by the Obama administration, but using the phrase "honor and distinction" to describe Bergdahl's service more than qualifies for me. The word "honor" has very specific and important meanings in a military context. The White House spin on this release has been ham-handed and shameful.

We will see considerably more fog-of-war reporting, analysis, and commentary in the days to come, including the serial battering of strawmen by partisan dead-enders on both sides of the major-party divide. The ugly trans-partisan truth underlying all this talk is that ending wars, whether actual or metaphorical, is a damnably messy enterprise, in large part because war itself is the definition of policy failure.

So yes, let's argue about Bowe Bergdahl, and the process of his release: It's legitimately fascinating, and raises more questions than even seven points or 3,000 words can cover. But let's never forget that he was captured by the Taliban in 2009, more than seven years after the U.S. military drove the Taliban from power. You want fewer controversies like this? Get the U.S. military out of the nation-building business, and re-orient their missions toward the defense of America, rather than the defense of misguided American policies.