Three Questions About The Bergdahl Deal Answered
Does it matter if Sgt. Bowe Bergdahl deserted his post in 2009, after having become disillusioned with the war in Afghanistan, only to be captured by the Taliban and held prisoner of war for five years?
Of course it doesn’t matter.
Maybe he deserted, maybe he didn’t. If there’s good cause to think he did, a military court will decide the truth and if convicted of that crime in accordance with United States law he will be punished in accordance with United States law. If found not guilty, he’s not guilty. Until then, he’s entitled by our laws to a presumption of innocence.
Point is, as of this week, he is once again subject to our laws and not the whim of a Taliban faction.
Whether he was disillusioned with the war in Afghanistan is hardly relevant, either. To him or to us. As a soldier, his job is to serve and no one forced him to join the service; as a polity, it is for us to decide what form that service takes and for better or worse, we sent this young man off to war. So either he did his duty or he was derelict; his attitude or political thoughts are simply irrelevant.
The punishment for desertion is to be found in Article 85 of the Uniform Code of Military Justice. The amount of punishment is left to the discretion of the court-martial and can include death but is substantially more likely to be a prison sentence and a non-honorable discharge. But it is not “being left to rot in the hands of the enemy.”
An important message to the men and women in uniform: you are an American soldier first; even if you are a criminal second. And the “American” part of being an “American soldier” means you have rights and that we’re simply not going to let you rot in enemy captivity if it’s within our power to get you back. Seriously, how could we even have a functioning military if the government’s policy was anything other than this?
Now. Should President Obama have set five Taliban bad guys loose in exchange for Bergdahl?
Damn right he should have. That’s how valuable an American soldier is.
We expect great loyalty and great sacrifice from our men and women who volunteer to go fight for us. The loyalty we owe them in return is captured nicely by the slogan “no one left behind.” Even a suspected deserter. He may stand trial for desertion and face punishment for it if convicted, but he’ll do it at home where he belongs. A failure to have taken advantage of an opportunity to get a solider back would seriously harm military morale.
Besides, our kill ratio against the Taliban is higher than 5:1. We’re better-armed, better-intelligenced, better-supplied, better-trained, better-supported than they. So in the coldest and most bloodless of military terms, one U.S. soldier is worth more than 5 Taliban.
And, certainly by this point, should we have anyone prisoner in Guantanamo? I realize there are some Very Bad People in there who can’t be let at their liberty. But they are within our power and subject to our laws and we don’t keep people prisoner without giving them trials. It is a continuing shame on America that we keep people prisoner well away from the theater of war, affording them neither due process of law nor the status of prisoners of war under the Geneva Convention.
Finally, did the President release these five people out of Guantanamo without consulting Congress, or at least Congress’ designated leaders, first, as the law requires?
Yeah, it sure looks that way. And it sure looks like there was time to cut them in on the intelligence loop, too. It’s done now, there’s no undoing it. An apology seems to have been issued, but that’s pretty thin ketchup for simply circumventing the law, even if there was a signing statement about, well, exactly this sort of thing.
Of course, that makes this deal pretty much exactly like the technically extra-constitutional Louisiana Purchase: the President can say, “We had to act fast to take advantage of the opportunity and so that’s what we did,” even if that’s not strictly true, and enough people will overlook the legal niceties. It’s wartime, after all, and the President is commander-in-chief.
There’s something to that, which is why there may have been a breach of law that the courts ought not to involve themselves in, as it’s pretty clearly a “political question.” I suppose the pro-Biden faction of our polity will be making noise about this for some time to come, but I personally can’t find it within myself to say that getting a U.S. soldier freed from enemy captivity is a “high crime or misdemeanor” even if it was a violation of a Constitutionally-questionable law. I also doubt that anyone who would vote in favor of impeachment would have needed so robust an excuse as this, and anyone who would have voted against impeachment before will find this action particularly persuasive — but that’s a political issue, not really a legal one.
We brought our boy home. That’s what matters.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.