Two points about the outrageously partisan outrage over the Bergdahl-for-Taliban swap: First, imagine the outrage (that word again) if it had been learned that President Obama had the opportunity to make the trade and turned it down; second, all the outrage comes from those quarters who oppose anything the president does, good or bad, justifiable or not.
Let’s face it, if the president came into the Rose Garden tomorrow to announce the sun rises in the East, some Americans, many Republicans, that is, would say, “Wait a minute, how about the West?”
No is the default position for most Republicans, as they have proven time and again.
None of this is to say that there are not serious questions surrounding the return of Sergeant Bowe Bergdahl and the release of five Taliban prisoners from Guantanamo Bay, Cuba. Nor is it to deny that the White House made missteps along the way.
The quick-to-condemn crowd has, in its haste, conflated two different and separate questions: First, should the United States negotiate with terrorists; second, is Bergdahl a hero or a deserter?
Texas Republican Senator Ted Cruz believes not only that the United States should not negotiate with terrorists but also that it has not done so. “The reason,” the tea party darling said recently, “why the U.S. has had the policy for decades of not negotiating with terrorists is because once you start doing it, every other terrorist has an incentive to capture more soldiers."
The senator should do his homework. The United States has frequently negotiated with terrorists, most famously when President Ronald Reagan agreed to send missiles to Iran in return for seven Americans captured in Beirut, Lebanon. That offer is known as the Iran-Contra scandal.
President Bill Clinton’s administration treated with Hamas in attempts to move the Mideast peace process forward, and the United States, in 2010, released a Shia cleric, Qais al-Khazali, in return for Peter Moore, a private British contractor.
The “we-don’t-negotiate-with-terrorists” line has a nice ring to it, but it’s simply not true as a statement of policy. Still, it’s a defensible position, and if that is the position of the president’s critics, then it should be the position regardless of who is held hostage, whether it be the pope, the president, a humble citizen, a soldier, or Bowe Bergdahl. If that is the position of the critics, then all the talk about the circumstances of Bergdahl’s capture is irrelevant.
Irrelevant, that is, to the issue of obtaining his release. Once he’s home, “the circumstances” of Bergdahl’s capture, about which we know very little, become very relevant and should be investigated. Indeed, the other oft-stated line in this faux-controversy, “We don’t leave our men or women in uniform behind,” to quote the president, applies to all soldiers, heroes or scoundrels. To heroes for obvious reasons, to scoundrels because we should bring them home, investigate them, and court-martial as warranted.
Which brings us to the administration’s missteps. It is clear the president circumvented the law in not informing Congress of the status of negotiations with the Taliban. No doubt, the administration has a strong case in arguing that the urgency of Bergdahl’s condition and the sensitivity of the negotiations prohibited timely consultation with the legislative branch.
But the administration’s justification for ignoring Congress is troublesome. When Obama signed the law stipulating prior consultation, he attached a signing statement stating the president “must have flexibility… to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.”
The current president has made use of this odious ploy of his predecessor in justifying the exercise of executive power. Obama has not employed signing statements — in which the executive announces his willingness to disregard portions of a legislative act he is signing into law — as frequently as George W. Bush, but he has used the constitutionally questionable tactic for end runs around Congress.
Candidate Obama called Bush’s use of signing statements a “clear abuse” of executive power, with good reason. Bush issued signing statements challenging 1,200 provisions of 172 laws he signed — twice the number of signing statements issued by all previous presidents combined. “The President’s constitutional duty,” the American Bar Association said in 2006, “is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.”
Those words apply to President Obama as well.