An “interim analysis” is what is called for when certain aspects of a matter can now be established as fact whereas other parts remain muddied by conjecture, speculation, and out-and-out political posturing. The intent here is to start with the former and then move on to the latter, providing certainty and clarity when justified on the evidence, and to withhold conclusions when that is demanded by both objectivity and Sgt. Bergdahl’s rights.

The Facts

* In principle, the President was on solid ground in bringing Bergdahl home. Obama followed a time-honored tradition in our military of leaving no comrade behind.

* The exchange of prisoners has been going on throughout the history of modern warfare. You can go all the way back to the Cold War and our retrieval of U-2 spy plane pilot Francis Gary Powers for a US precedent. If that’s not sufficient, then let’s never forget that then-President Reagan swapped arms for hostages as part of the Iran-Contra scandal.

* Senate Republicans’ claim that they were not notified of the swap flies in the face of documents obtained by the Washington Post and reported on by their “Fact-checker” Glenn Kessler (1). Those papers make clear that these same complainants knew that negotiations for a swap were ongoing, starting about two years ago, and involved the very same five high-level Taliban members that eventually became part of the actual exchange. What Obama did not do was meet the law requiring a “30-day notification” of the Senate preparatory to the actual effecting of the deal, a matter that will be discussed in “Muddied Waters”, the next section of this blog.

Muddied Waters

Now we have to engage in qualifications (or the absence of them), parsing and nuance to understand what should, on the evidence (or lack of it), and as a matter of principle, remain to be conclusively sorted out.

* The “principle” set forth at the start of the “Facts” section has never had codicils and pre-conditions attached. The first order of business is to get the person home. After that, if there are questions about the individual’s loyalty and service, those can be addressed in the proper venue with the accused accorded all his rights as an American citizen.

* Bergdahl has been described as a “traitor” and “deserter”. What is known for certain is that he walked off his post, leaving his weapon and night goggles behind. What remains unclear is why? Was he seeking to cast his lot with the Taliban and fight against his own country? Did he simply conclude that the mission in Afghanistan was misguided, wanted no part of it and simply walked off, hoping for the best? Was his mental and emotional state such that his judgment was impaired? Was he seeking some solitude away from his platoon members whose attitudes towards him may have been less than supportive? Too many people have been quick to pass a harsh, negative judgment on the man, in effect convicting him without any sort of hearing (2). Those judgments may ultimately prove to be deserved, but can we have a hearing or trial FIRST?

*That brings us to the “30-day notification” law cited earlier. There is no question that the law is on the books. But, it has never been tested as to its constitutionality. Indeed, legal scholars have weighted in on that, positing without dissent that the statute is unconstitutional because it infringes on a president’s rights as Commander and Chief of our military. The argument that “a law is a law” and must be upheld is at odds with our history of elected officials (both Republicans and Democrats) refusing to enforce rules out of their conviction that they will not pass constitutional muster (3). In the present case, if the president’s critics choose to charge him with breaking the “30-day notification” law, they are likely to lose that case in court.

* There can be a healthy debate over whether Obama gave up too much both in numbers and the ranks of the Taliban who were part of the exchange. On its face, a five-for-one swap, especially of high-level enemy, comes across as a bad deal. But, to date, we know too little about the history of the negotiations that had been in process, off-and-on for the past two years. Theoretically, it’s possible that the president bargained the Taliban down to the five Gitmo detainees who were released. Whatever the truth, it behooves critics of the deal to state specifically what sort of arrangement they would have negotiated while still honoring the code of leaving no one behind (4).

Ending Comment

As is the case when we bring accused criminals to trial, our legal system requires that they be physically and emotionally capable of going through that process. We owe Sgt. Bergdahl no less. At some point, his rehabilitation will end. At that juncture, the interests of justice can be served. Until then, expect the rumors, unsubstantiated claims and politicizing of this matter to continue, unabated.

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1. Part of Kessler’s fact-check involved a serious “smack-down” of Sen. John McCain (R-AZ) who was shown to have flipped-flopped on the swap, being for it before he was against it and then claiming otherwise.

2. The thrust of the political posturing by conservatives has involved demonizing Bergdahl so as to tar the president by association.

3. In the last many months, the Attorneys General in a number of states have refused to enforce existing marijuana laws and/or statutes against same-sex marriage.

4. On a recent “Hardball” show, host Chris Matthews put that squarely to Rep. Marcia Blackburn (R-TN). She evaded the issue not once, but three times!!

 

 

 

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