Tag Archives: Bergdahl

The Bergdahl Dispute Is A Constitutional Issue More than A Partisan One

The ongoing dispute regarding the Taliban-Sgt. Bowe Bergdahl prisoner exchange is not only, or even primarily, a partisan fight. It is a constitutional argument, but one that will be decided (if at all!) not by a legal process, but by a political one – just as the Framers intended.

In this earlier post, I argued that the motivation for President Obama’s decision to swap the five Taliban prisoners for Bergdahl’s release was probably not dissimilar to the reason why President Ronald Reagan agreed to trade arms for hostages: both were driven by humanitarian concerns for the safety of those in captivity, and for their families. Consistent with my claim, in his public statements since initially announcing the release of Sgt. Bowe Bergdahl, the President has continued to defend the decision in humanitarian terms, arguing that America does not leave its soldiers behind.  Some have questioned whether that credo is worth the cost, particularly when applied to a possible deserter. But even if one accepts the President’s explanation, critics maintain that the President was legally obligated to inform Congress before moving any Taliban out of Guantanamo Bay prison as part of the exchange. Many have dismissed this criticism, arguing that it is motivated purely by partisan politics. But even some Democratic legislators have argued that the President should have consulted with them before the prisoner swap took place. Indeed, members of his own administration, including Secretary of State Hillary Clinton and CIA director Leon Panetta were reportedly resisting the prisoner swap as discussed in an earlier incarnation. Clearly, the divide over the Bergdahl swap is not simply a partisan one.

Obama and his aides have responded to Congressional criticism by arguing that this was a time sensitive issue, and that they could not jeopardize Bergdahl’s safety by consulting with Congress – and presumably risk having the negotiations exposed through leaks – as the deal was imminent. In the words of national security adviser Susan Rice, “What we put the highest premium on was the safety of Sgt. Bergdahl. This was held closely within the administration. We could not take any risk with losing the opportunity to bring him back safely.” In another parallel to the Iran-contra affair,  Rice’s defense echoes the argument Lt. Colonel Oliver North made in his testimony before the joint congressional committee investigating the Iranian arms-for-hostage deal. When asked to defend the failure to consult with Congress regarding the Iranian arms swap and the funneling of residual funds to the Nicaraguan contras, North replied, “I think it is important… that we somehow arrive at some kind of understanding right here and now as to what a covert operation is. If we could [find] a way to … talk about covert operations to the American people without it getting into the hands of our adversaries, I’m sure we would do that. But we haven’t found the way to do it.” In further testimony North made it clear that he and his immediate supervisor, national security adviser Admiral John Poindexter, kept their dealings with Iran secret from Congress because they feared that once Congress was officially informed of the initiative, members would leak their knowledge to the public, thus undermining the effort to get hostages released.

Members of Congress did not react very favorably to North’s defense then, and they are not likely to buy Rice’s explanation today. As co-chair of the joint Congressional committee investigating the Iran affair, Representative Lee Hamilton pushed back against North’s defense of hiding covert operations from Congress, citing Congress’ need to exercise its constitutional oversight duties. In Hamilton’s words, directed to North: “You and I agree that covert actions pose very special problems for a democracy. It is, as you said, a dangerous world, and we must be able to conduct covert actions….But it is contrary to all that we know about democracy to have no checks and balances on them. We’ve established a lawful procedure to handle covert operations. It’s not perfect by any means, but it works reasonably well.” Hamilton went on to criticize North’s attitude toward Congress’ constitutional role: “I do not see how your attitude can be reconciled with the Constitution of the United States…The Constitution grants foreign policymaking powers to both the President and Congress and our foreign policy cannot succeed unless they work together.”

To be clear, as I said in my earlier post, the policy significance of the Bergdahl swap is likely not nearly as important as were the issues at the heart of the Iran-contra affair. But the current dispute centers on the very same constitutional debate regarding the relative roles of the President and Congress in foreign policy – a debate woven into the very fabric of the American political system of shared powers. How do we reconcile a president’s constitutional duty to act, as Alexander (not Lee) Hamilton put it in Federalist 70, with “secrecy, and dispatch” versus Congress’ right to hold the President accountable and to deliberate regarding his (someday her) actions?

At its heart, although the Bergdahl dispute is really an argument over the meaning of the Constitution, it cannot be resolved by efforts by constitutional scholars to parse the meaning of that document, or the meaning of laws based on it. Indeed, legal experts have already shown that they are hopelessly divided on the merits of the case. Rather, the dispute will play out in the court of public opinion, as mediated by partisans, pundits and the occasional political scientist. Already the early polling suggests that a strong plurality (43% to 34%) of the public believe the exchange was “the wrong thing to do”. Pointedly, however, more than 20% of those polled have no opinion on the affair, so opinions remain fluid.

My own view, as I expressed in my earlier post, is that Obama’s humanitarian concerns may have blinded him to the underlying constitutional and institutional objections regarding how the exchange was conducted, much as Reagan’s concern for the welfare of the hostages blinded him during the Iran-contra affair to the implications of negotiating with terrorists. But no matter how this latest brouhaha plays out, it will not resolve the fundamental Constitutional tension that lies at the root of these disputes. In the oft-quoted words of political scientist Edwin Corwin, the Constitution “is an invitation to struggle for the privilege of directing American foreign policy.” As we watch that struggle play out in the coming days and weeks, we should remind ourselves that this is precisely how the Framers expected these disputes to be resolved.

1:42 Update:  CBS released the results of a second poll on the Bergdahl controversy  and the results were similar to those of the USA poll I cited above: 45% disapproved of the transaction, compared to 37% who approved, but fully 18% of respondents expressed no opinion on the swap, suggesting that attitudes on the topic have not yet hardened.

Why Presidents Negotiate With Terrorists

Why do presidents negotiate with terrorists?

In January, 1984, President Ronald Reagan’s Secretary of State George Schulz designated Iran a sponsor of international terrorism and, under a program called “Operation Staunch”, the U.S. began actively pressuring allies to enforce an arms embargo against Iran, which was fighting a war of survival against Iraq. However, later that summer and fall, and continuing into 1985, U.S. diplomatic and intelligence specialists began to reevaluate U.S policy toward Iran. The internal reappraisal was prompted in part by the fear that the U.S. had little leverage to influence the power struggle in Iran that was likely to occur in the aftermath of the elderly Iranian leader Ayatollah Khomeini’s death, and that the post-Khomeini Iran might move closer to the Soviet Union’s sphere of influence. That reappraisal, moreover, was taking placing while the U.S. was debating how to secure the release of several kidnapped Americans, including the CIA station chief William Buckley, who were being held by shadowy extremist groups in the Mideast. (At least 17 Americans were kidnapped in Lebanon alone during the period 1982-1987.) Eventually Reagan officials’ concern over the fate of the hostages combined with their desire to increase their influence with “moderates” in the Iranian government led to the Iran-contra affair, a secret and ultimately politically disastrous effort authorized by Reagan to trade arms to the Iran government for the release of the American hostages. (The contra element refers to a related effort, masterminded by Reagan’s national security staff, but evidently without Reagan’s full knowledge, to use the proceeds from the sales of arms to Iran to fund the American-backed Nicaraguan contras who were battling the Soviet-supported Sandinista government in that nation.)

The on-going effort to trade arms for hostages, and the related diversion of residual funds to the contras, was ultimately ended by the public revelation of the secret negotiations and subsequent transactions in November 1986. In the firestorm that followed, Reagan’s public approval plummeted, Congress initiated a joint congressional investigation amid calls for Reagan’s impeachment, and an independent prosecutor was appointed to investigate the affair. Key members of his administration were forced to resign, and some were charged with criminal conduct. Ultimately, although Reagan regained his political footing, the Iran-contra affair permanently tarnished his presidency.

Why did Reagan undertake a policy that ran so manifestly contrary to his administration’s policy not to negotiate with terrorists – one that was opposed by many of his key advisers, including Secretary of State George Schulz and defense Secretary Caspar Weinberger? In the immediate fallout from the disclosure of the Iran arms trade, Reagan insisted he had not actually traded arms-for-hostages, since the U.S. only dealt indirectly with the terrorists through a third party (the Iranian government). Moreover, the initial overture to Iran had been couched in geopolitical concerns regarding the balance of power in the Mideast in the aftermath of Khomeini’s death. But as Reagan’s biographer Lou Cannon concludes in his brilliant President Reagan The Role of a Lifetime, the tipping point in Reagan’s decision likely took place when his aides allowed him in the summer of 1985 to meet with members’ of the hostages’ families, who pleaded for Reagan to do something to secure their release. Cannon concludes in an assessment supported by most of Reagan’s closest aides that “Reagan’s personal feelings about freeing the hostages was the principal cause, though not the only one, for his enthusiastic pursuit of the Iran initiative. “

One cannot help but see echoes of many elements of the Iran-contra affair in the fallout resulting from President Obama’s Rose Garden announcement on Saturday, flanked by Sgt. Bowe Bergdahl’s parents, that Bergdahl was being freed by his Taliban captors in exchange for the release of five Taliban fighters held prisoner at Guantanamo Bay. In initially defending the exchange, some administration officials framed it as one part of a broader effort to open up a dialogue with the Taliban forces. They note as well that they dealt only indirectly with those holding Bergdahl prisoner and that, strictly speaking, the Taliban may not be a terrorist organization – a distinction lost on Obama’s critics. However, as was the case with Iran-contra initiative, key members of Obama’s administration, including Secretary State Hillary Clinton, evidently opposed earlier efforts to negotiate a similar prisoner swap. Moreover, as did the Reagan administration, Obama’s officials are defending cutting Congress out of the loop because of the time sensitive nature of the hostage negotiations, even as questions are raised regarding whether in so doing Obama’s administration broke a law requiring him to give Congress 30 days’ notice before the release or transfer of Guantanamo prisoners. And, as was the case in 1986, the administration is walking back from initial statements justifying the trade, such as National Security adviser Susan Rice’s claim on Sunday that Bergdahl “served the United States with honor and distinction,” in order to sort out the facts surrounding Bergdahl’s capture more clearly.

To be sure, the Bergdahl swap differs in important ways from the Iran-contra affair, not least in the significance of the policy implications at stake. Nonetheless, the Obama administration is going to be dealing with the fallout from this exchange for days and months to come, particularly in light of the inevitable Congressional hearings which are already gearing up. Beyond the damage to Obama’s standing the fallout from the affair, which has drawn bipartisan criticism, is not likely to strengthen Democrats’ hands in the run up to the 2014 midterms.

Given the strength of the political backlash, it is worth asking: why did Obama agree to negotiate with elements of what many see as an organization that, if not a terrorist group, is at least affiliated with terrorism? In my view, particularly after watching an emotional Obama hugging Bergdahl’s parents after the Rose Garden announcement, Obama acted in large part on the same sentiments that motivated Reagan’s efforts to secure the release of the American hostages. Indeed, in his recent remarks at the end of the G-7 summit, Obama explicitly couched the prisoner exchange in humanitarian terms: “I make absolutely no apologies for making sure that we get back a young man to his parents and that the American people understand that this is somebody’s child–and we don’t condition whether or not we make the effort to try to get them back.”

On a personal level, we might find presidents’ willingness to subjugate political concerns to humanitarian ones a quite admirable trait. But when presidents are allowed to act on their “best” impulses, they often underestimate the political repercussions. This is particularly the case when presidents’, and their closest aides’, political sensitivity grows dull because they no longer worry about reelection. This does not mean humanitarian concerns are misplaced. Like it or not, however, the presidency is an inherently political office, one whose capabilities are determined by the willingness of those who share the president’s powers to support his (someday her) initiatives. This is not to say the presidents ought never to act on humanitarian impulses. But when they do so, they should be fully cognizant of what it will cost them in influence down the road. That is the very definition of how presidents gain and maintain power. At this point, based on what is known via media reports, it is not clear to me that Obama fully understood the price he would pay for negotiating a prisoner exchange with the Taliban.