The successful effort to obtain the release of captured US Army Sergeant Bowe Bergdahl set a high water mark for idealism, and highlights the best of American governance. Though the subtleties of law and principle implicated in Bergdahl’s case are easily manipulated by cynics, and thus misapprehended by the unwitting many, a great deal of good, and a fine precedent, has nonetheless proceeded from a difficult situation.

The evidence strongly suggests that Bergdahl deserted. While he’s entitled to the presumption of innocence, for our purposes, we’ll assume that Bergdahl will be convicted of desertion, and that the Obama administration expected as much as they worked to obtain his release, ultimately paying a significant price. It’s also reasonably assumed that the five Guantanamo prisoners, whom the US gave up in exchange for Bergdahl, are indeed dangerous, simply because the Taliban wanted them. And so the threshold issue is why the US would give up so much to rescue a deserter, who has likely been brought back to the US for the sole purpose of standing trial, to thereafter serve a lifetime sentence in a military prison.

The rationale was best expressed in the terse phrasings of Army Chief of Staff Anthony Odierno: “It was always a high priority that every soldier deployed to Afghanistan would return home. We will never leave a fallen comrade behind.” Or as a US Admiral put it, “If a man goes overboard, we will go and get you – we wont stand around asking if you jumped.” The commitment of the US military to every one of its servicemen has no exceptions for poor performance. The policy of leaving no man behind has no asterisk after it.

Some have raised the issue of the US policy against negotiating with terrorists. However the Taliban has never been classified by the State Department as a terrorist organization, neither under the Bush nor Obama administrations. The US went to war against Afghanistan not because the Taliban – its rulers – were terrorists, but because they were harboring terrorists. The Taliban is better regarded as an especially brutal, repressive regime (and-or insurgency), in the vein of Hitler, Stalin, Pol Pot, Pinochet, Trujillo, etc. And the US has exchanged prisoners with many such regimes in the past, including Nazi Germany, the USSR, and even the Confederate States of America. Right-wing hysteria notwithstanding, the Obama administration’s decision to negotiate with the Taliban does not set a precedent or mark a departure from longstanding US policies.

A particularly silly criticism of the deal is that the US paid “too high a price” for Bergdahl – that after years of negotiating, the US in the end caved in and sent five enemy combatants for a single US soldier. Such critiques are particularly frivolous, advanced as they are in a factual vacuum, by people who were not privy to the negotiations. More absurd is the “problem” such critics seem anxious to head off: the US placing too great a value on the lives of its soldiers.

A more interesting issue is President Obama’s decision to flaunt the National Defense Authorization Act for Fiscal Year 2014, which mandates that 30 days notice be given to Congress before any prisoners are transferred from Guantanamo. That law, which Obama signed into effect, poses a separation of powers issue, and there is a very good chance that it is an unconstitutional usurpation of executive authority by Congress. (Obama said as much in his signing statement.) While in other countries the courts could resolve the matter with an advisory opinion, the US Supreme Court only has jurisdiction over live “cases and controversies” – i.e., the president cannot inquire as to whether a law is constitutional – he must make his own decision and act without the benefit of the Court’s opinion. And in such circumstances, very few conlaw scholars take the extreme viewpoint that the president must “faithfully execute” laws that seem to run afoul of the Constitution.

It would have been far easier for the Obama administration to do what some on the right-wing lunatic fringe suggested: try Bergdahl in absentia, obtain a verdict of guilt, and disown him. (Though it’s naive to imagine conservatives rallying behind the president as Bergdahl’s corpse was dragged through the streets by his captors.) Instead of taking an easy way out, the Obama administration stood fast to principle: faithful to the policy of bringing every man home; and to the presumption of innocence; and the commitment to due process, which affords the accused the opportunity to face his accusers and participate in his own defense. While the price paid for Bergdahl may have been dear, in the end it wasnt one soldier that the US was paying for, but a set of principles that go to the foundation of the republic.

 

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