Questions About the Return of Army Sergeant Bowe Bergdahl

MS. DIANE REHM

10:06:53
Thanks for joining us. I'm Diane Rehm. On Saturday, Army Sgt. Bowe Bergdahl was released in exchange for five detainees at Guantanamo Bay. Bergdahl was the last U.S. soldier in captivity. He was held by the Taliban for nearly five years. Joining me to talk about the prisoner exchange, the legal status of Sgt. Bergdahl, and what it means for future anti-terrorism efforts: David Ignatius of the Washington Post, Tom Bowman of NPR, and James Kitfield of Atlantic Media's Defense One and the National Interest.

MS. DIANE REHM

10:07:36
Joining us from New Haven, Conn., Eugene Fidell of Yale University Law School. You are welcome to be part of the conversation as always. You can call us on 800-433-8850. Send us an email to drshow@wamu.org, follow us on Facebook, or send us a tweet. And welcome to all of you.

MR. DAVID IGNATIUS

10:08:05
Good morning, Diane.

MR. TOM BOWMAN

10:08:05
Good to be here.

MR. JAMES KITFIELD

10:08:06
Good to be here.

REHM

10:08:06
Good to have you here.

MR. EUGENE FIDELL

10:08:07
Nice to be here.

REHM

10:08:08
Tom Bowman, I'll start with you. Take us back to 2009 and tell us how Bowe Bergdahl was captured.

BOWMAN

10:08:20
Well, according to his comrades in the 501st, he walked away from his post. And that was confirmed, we're told, by an Army investigation in 2010. They concluded he did, in fact, walk away. He was not kidnapped. And as he said in the Taliban video, that he was lagging behind on a patrol and was captured, there's no evidence that that happened, according to the Army investigation and according to his comrades.

BOWMAN

10:08:49
So he walked away. And that day or the next day they went out searching for him, and they came by a nearby school. And they talked to a couple of kids. And they said, we saw an American soldier in a t-shirt and army pants crawling, walking through the weeds. And that's the last they saw of him until the video appeared this morning showing him -- well, he was on videos the Taliban sent over the years. But this morning, there was a video of the Taliban showing his release to American commandoes.

BOWMAN

10:09:21
So the question is, why did he leave? We still don't have a sense of that. His comrades said -- his sergeant, who was his team leader, said he had grown disillusioned with the war, and he thinks that may have had a reason -- the reason why he left. But there'll, of course, be another investigation. As Chairman of the Joint Chiefs Martin Dempsey said, the first order of business is to get him home. And then we'll decide what laws, if any, have been broken.

REHM

10:09:49
And, James Kitfield, apparently Bowe Bergdahl had sent some letters home expressing his dissatisfaction. What did they tell us?

KITFIELD

10:10:02
Oh, I think tell us that this was a soldier who was very troubled by the experience of being in Afghanistan, apparently, reportedly, also left a note with his unit. So that investigation is likely to point a finger that he may well be a deserter. But, you know, I think the -- on this one, Obama's right to say, you know, the principle that we don't leave a soldier behind is not conditional. This, you know, we have a -- he's innocent until proven guilty. And even if he's guilty, we don't leave soldiers in captivity without trying to get their release. So, on the principle, I don't really think it matters.

REHM

10:10:34
What about the trade itself, David Ignatius? These five apparently pretty high up Taliban leaders freed from Guantanamo, sent to Qatar and exchanged for Bowe Bergdahl. And, of course, there's also the charge from Congress that they were not notified.

IGNATIUS

10:11:02
That's the second controversial aspect of this case. In addition to whether Bergdahl was a deserter or deserved to be rescued at such great costs, the second issue is the price paid to get him out. These five are the hard-core Taliban leaders, they were named by the Taliban, going back to November 2010 -- perhaps even earlier these names were floated. They asked for the release of people who were crucial to them, their senior commanders.

IGNATIUS

10:11:34
One of them was the Taliban minister of the interior, another was Taliban military chief of staff, two of them were Taliban facilitators with al Qaida and al Qaida operations, so these were people within the Taliban who were doing things that, from the standpoint of the United States, made them especially dangerous. So there's been a question, was it appropriate to release these people? The debate about whether release them goes back several years.

IGNATIUS

10:12:00
And it's my understanding that Adm. Mike Mullen, who was the chairman Joint Chiefs of Staff, was very uncomfortable with releasing them, so was the Secretary of Defense Bob Gates and his successor, Leon Panetta. The current Secretary of Defense Chuck Hagel did sign the document required to release them from Guantanamo. And, in effect, Congress was overridden.

IGNATIUS

10:12:25
Sen. Diane Feinstein, the Democratic leader of the Senate Intelligence Committee, I see from her posting on television this morning, has said that she believes that overriding this requirement for 30-day notification of Congress was illegal, violated the law. President Obama has said that he had no choice. He had to act quickly. There wasn't time for the notification. But these two different issues of controversy, Bergdahl himself, and then the five Taliban leaders. And can they be kept out of the fight after they're in Qatar.

REHM

10:12:58
Of course. And that is a big question. Turning to you now, Eugene Fidell, as a former president of the National Institute of Military Justice, first, the whole question of if, in fact, Bowe Bergdahl was a deserter, did he deserve to be rescued? Secondly, the whole question of congressional oversight and whether President Obama violated military or congressional law by going around the Congress.

FIDELL

10:13:46
Right. So on the two questions you raise, Diane, let me take them in the order you presented. The only circumstance under which this country would not exert itself to rescue or retrieve or re-acquire one of our own forces is if the individual had changed sides, in other words, had affiliated with an opposing force. That's obviously not this case, or at least, you know, as far as we know, there's no evidence of that.

FIDELL

10:14:26
Other than that, as one of the government spokesmen yesterday indicated, look, if a person jumps off a ship, right, we circle back, and we pick the person up although, interestingly, there is such a case, and I'll -- forgive me, but there's -- the name of the case is the United States against Sadinsky, a man who, in fact, jumped off an aircraft carrier on a dare. And, in fact, the aircraft carrier or one of the associated vessels in the formation did go back and pick Sadinsky up.

FIDELL

10:15:01
That's paragraph one. Paragraph two is, and then we court-martialed him. So -- for jumping off an aircraft carrier underway on a dare, that was his offense. So the answer is, yes. We really do exert ourselves and even if the person finds himself in enemy hands through mischance, as long as he or she has not sort of repudiated his or her relationship with our country, we're going to do whatever we can, within reason, to bring that person back. So that's your first question.

FIDELL

10:15:42
The second question is, well, what about the president's -- I don't mean to say override, but failure to do what the statute seems to require in terms of notification. The answer there is, as the president indicated in his signing statement -- and I have a word or two I'd like to say about signing statements because that also is one of the narratives that's going on here. He indicated that there were problems with the legislation from a constitutional standpoint. There are times when Congress passes legislation that either on their -- on its face or as applied in particular circumstances operate unconstitutionally.

FIDELL

10:16:35
And in this case, my own judgment is the president has power as commander in chief to make these kinds of decisions on a retail basis, on a case-by-case basis. And there are times when Congress does things that actually get into the president's way on a core function that is assigned to the president under the United States Constitution. I think that's what we have here. Yes, does it violate the statute? Yes. However, I believe the president's constitutional responsibility as commander in chief trumps the statute. So you have, in effect, a statute that's unconstitutional, as applied to this situation.

REHM

10:17:23
Eugene Fidell, he is lecturer at Yale Law School, former president of the National Institute for Military Justice. On this question of changing sides, David, it is said that Bowe Bergdahl told his parents he was "ashamed to even be American" and was disgusted with the U.S. mission in Afghanistan and with the Army. How do read that?

IGNATIUS

10:18:05
Honestly, I think we're going to have to know a lot more about Bergdahl, both what he may have written in the past and how he describes his own feelings and what motivated him. There's a very interesting article by somebody who served with him in his unit that appeared on The Daily Beast. His name is Nathan Bethea. And he describes the morning the Bergdahl walked away from his unit, stacking his body armor, his helmet, his rifle in a neat stack and then walking away from the unit, taking his compass with him. And this guy says, telling his comrades that he was going to walk all the way to India.

REHM

10:18:47
David Ignatius of The Washington Post. Short break, right back.

REHM

10:20:01
And as we talk about the circumstances surrounding Bowe Bergdahl's leaving of his platoon in Afghanistan, his rescue by Americans, and the president's role in all this, which is certainly being questioned by the U.S. Congress, joining us now from Livonia, Mich. is Gerald Sutton. He's a former Army Specialist and veteran of the war in Afghanistan who served in the same platoon as Bowe Bergdahl. Gerald Sutton, thanks for joining us.

MR. GERALD SUTTON

10:20:48
Thank you very much, Diane.

REHM

10:20:49
Can you talk about your relationship with Bowe Bergdahl? I gather you were platoon mates, but you were also friends.

SUTTON

10:20:59
Yes, that's correct, ma'am. We were friends, and he was one of my -- actually my first friend that I met when I got to the 501st in January of 2009.

REHM

10:21:09
Others have described him as kind of a loner. You didn't see him that way.

SUTTON

10:21:16
I did as well. I mean, I stuck to myself as well, but he did manage to connect with me but not so much, not too often. But we did spend time together on and off base.

REHM

10:21:28
And how did you first learn he was missing from your platoon?

SUTTON

10:21:35
I was asleep at the time, and I was woken up right when he went missing. And, immediately, I knew right away that he had, in fact, deserted us.

REHM

10:21:47
Were you surprised?

SUTTON

10:21:50
Somewhat. I didn't actually think that anybody would actually commit desertion, especially in our platoon. We were very tight knit.

REHM

10:21:59
So you're using the word desertion. Is that what others in your platoon have said?

SUTTON

10:22:10
Yes, that's correct, ma'am. We all believe that he did in fact desert.

REHM

10:22:14
So then I gather your company began this long search, two months. How did you feel about that effort?

SUTTON

10:22:23
At first I was kind of shocked in the first few days, and then I became a little bit angry because I considered him a very good friend of mine. And he just left us.

REHM

10:22:36
And how involved were you in the search?

SUTTON

10:22:43
I took part in the immediate search for the first 17 days straight. We went every direction possible looking for him, going on leads. I don't really know the details of these leads. I just was told it's time to get up and move, and so I moved.

REHM

10:22:58
Now, there have been some claims that six members of the military have died because of Bowe Bergdahl's leaving. What can you tell us about that?

SUTTON

10:23:16
Personally, I really can't come to a certainty of a conclusions that these men died -- I mean, it's a shame that these men died. One of them was my really good friend, and it's really hard to say that they died as a direct result of him because, I mean, we all signed up for the military. And the minute we set foot in Afghanistan, we were putting ourselves in danger. So at any time, we could've been killed. It's very sad, and if this is the truth, that he is a direct link, then I will come to an obviously different conclusion.

REHM

10:23:48
Tom Bowman of NPR, Gerald Sutton is saying he cannot draw a link between the six apparently killed in the search. What do we know about that?

BOWMAN

10:24:03
Well, it is kind of murky. And you talk to Pentagon officials, and they say there is no direct link between those who died in the search for Bergdahl. But those who served -- some of those who served with him, including his team leader Sgt. Evan Buetow who I spoke with the other day, he said, listen, we were on targeted missions to go look for Bergdahl.

BOWMAN

10:24:22
He said, I did it for 60 days. We rarely took showers. We were at this small combat outpost. All of our focus was finding Bowe Bergdahl. And he's convinced that because they were direct targeted missions to go after Bergdahl and people died that you can make that connection between Bergdahl leaving and those deaths. But again, the Pentagon said, we're not sure if there's really any direct connection.

REHM

10:24:43
And there was a statement from the Taliban itself during that period?

BOWMAN

10:24:52
I'm not sure if there was a statement during that period.

REHM

10:24:54
Or chatter.

BOWMAN

10:24:55
Oh, I'm sorry. The next day there was chatter, according to Sgt. Buetow -- former Sgt. Buetow. And he said, at a nearby village, they picked up this chatter. And when it was translated, he said, I was sitting right next to the translator. And what the translator reported was that they were saying, there's an American in this village. He's looking for someone who speaks English so he can talk to the Taliban.

REHM

10:25:18
Wow. Gerald Sutton, how did you feel when you heard the news this weekend that Bowe Bergdahl had been released in exchange for the five at Guantanamo?

SUTTON

10:25:35
I had a lot of mixed feelings, but then -- I mean, I was happy that he was going to be able to come home and see his family because his father and his mother haven't seen him for the last five years. But I'm really unsure about everything -- the circumstances and everything, and I try to stay away from that. That's up for Congress to debate and to decide, and it's beyond me.

REHM

10:25:57
And...

BOWMAN

10:26:00
And he mentioned a friend that had died. Could you give us the friend's name and the circumstances under which he died?

SUTTON

10:26:06
I mean, his name has been spoken and everything, but I'm trying to respect the wishes of the family...

BOWMAN

10:26:10
OK.

SUTTON

10:26:10
...and I really don't want to just keep throwing the names out.

BOWMAN

10:26:12
Sure.

SUTTON

10:26:13
They've been going under too much stress.

REHM

10:26:15
OK. And finally, Gerald Sutton, in your mind, is Sgt. Bergdahl a hero, a traitor, or neither?

SUTTON

10:26:27
I believe that he's just a deserter. Being a traitor takes a lot of evidence to establish that, and that's up to a thorough investigation. And I believe that he should face a court martial and be able to present as solid of a defense that he can because he deserves due process. But, for right now, he should just recover and then until he's fit to go to trial. That's -- personally, I believe that he should go to trial for this.

REHM

10:26:50
Tom Bowman.

BOWMAN

10:26:50
This might be a good time to talk about our terms here. There's absent without leave, and then there's desertion. And I would turn to our counsel here, Gene Fidell. I'll have him define those terms for us, so we're all talking about the same definitions.

FIDELL

10:27:06
Right. Well, absence without leave, AWOL or sometimes called unauthorized absence, that's what the statute actually says, is simply failing to be at your place of duty, leaving your place of duty at the time you're supposed to be there. It's a very common offense under the uniform code of military justice. I can't give you numbers on it, but it's common and typically a rather minor offense.

REHM

10:27:37
And how does that differ from desertion?

FIDELL

10:27:41
Desertion is really a substantially different kettle of fish. Classic desertion means leaving with the intent to remain away permanently, OK. That's the classic. And then there are -- there's another subset of desertion that is treated more aggressively under the manual for court's martial. That's desertion with the intent to shirk hazardous duty or important service -- or shirk important service.

FIDELL

10:28:21
And the difference there is that the punishment is higher for that kind of desertion. Now desertion happens from time to time. We commonly refer to deserters -- and the military in fact treats as a deserter for administrative purposes, anyone who's AWOL for more than 30 days. But for the criminal offense the classic case is an intent to remain away permanently.

FIDELL

10:28:52
And I might add, you don't have to be away very long. If there's evidence that you intended to remain away permanently and they catch you on your way over the fence and, you know, you're away for 10 minutes, the government could still get a conviction for desertion. If you left a note, for example, on your rack saying, I'm leaving Sarge, you'll never see me again, and they catch -- you know, the MPs catch you or the sentries catch you, that's a pretty good desertion case.

FIDELL

10:29:24
Many desertion cases stand or fall on circumstantial evidence. And, you know, for lawyers who have prosecuted cases in the military, all of us are looking at the various shreds of evidence, some of which have already been mentioned this morning, Diane, that, you know, tend to point to a soldier who really is never planning to come back. So do I think this is a litigable desertion case? Yes, based on what we currently know.

REHM

10:29:54
All right. David Ignatius has a question.

IGNATIUS

10:29:58
Well, Gene's discussion of this is fascinating. We've had desertions in every American war I've ever read about. You read Rick Atkinson's three-volume history of World War II, and, you know, there are desertions throughout the war. Certainly in Vietnam, desertion and worse, attacking your superiors because of rage about the war, was common.

IGNATIUS

10:30:24
I wanted to ask Gene if he's aware of a case involving either an AWOL soldier or somebody accused of desertion in which the same pattern of fact would obtain where there was an effort to go get this person, bring them back, and then try them on a desertion or AWOL charge.

FIDELL

10:30:45
No. The answer is I can't think of such a case. But while I have the floor for a second, can I add a footnote to what I said before?

REHM

10:30:52
Certainly.

FIDELL

10:30:54
Because -- just thinking back to World War II, of course, the most famous desertion case in American military history is that of Pvt. Eddie Slovik who was in fact executed for desertion. So you might think, well, gee, you know, isn't this wartime and shouldn't the penalties be sky high? And the answer is, the manual for courts martial in fact permits the death penalty or life in prison for desertion in time of war.

FIDELL

10:31:27
But we do not have a time of war at the moment, notwithstanding -- you know, we poor mortals might think, gee, it looks like a war from where I sit, but, legally speaking, we don't have a declaration of war. We haven't had one of those since World War II. And also, neither President George W. Bush nor President Obama has availed themselves of the opportunity to deem this a time of war for various purposes under the Uniform Code of Military Justice.

REHM

10:31:55
All right.

FIDELL

10:31:55
So it's interesting that, even though it looks like a war, for this purpose, it's not a war. And therefore the death penalty and life in prison and, you know, these really long sentences that might otherwise be available are not on the table.

REHM

10:32:09
And you're listening to "The Diane Rehm Show." Gerald Sutton, one last question for you. Did Bowe Bergdahl express anger or rage and a desire or a sympathy for the Afghanistan -- the Afghans? Did he say anything to you that made you feel he wanted to leave?

SUTTON

10:32:45
I can't really think that he said anything that he wanted to leave, but he did feel sympathy for the Afghan people. He spent a lot of time with the ANP, the Afghan National Police, as Evan Buetow has said too. And I back Evan Buetow fully. I was in the platoon with him, so -- but honestly I don't -- I want to know. I mean, I want to know why all this happened and why he (unintelligible) ...

REHM

10:33:10
As do the rest of us, Gerald. Thank you so much for joining us.

SUTTON

10:33:16
Thank you very much, ma'am.

REHM

10:33:17
Gerald Sutton is former Army Specialist, a veteran of the war in Afghanistan. He served in Bowe Bergdahl's platoon. And now, turning to you, James Kitfield, what's your reaction to all this?

KITFIELD

10:33:34
Well, you know, I think Gerald captures the ambivalence of the situation perfectly. I mean, here's a guy who knew this person, was a friend of this person, happy he's back, happy his family's put out of this torturous situation, yet very ambivalent about the circumstances when he left. You know, given the evidence that we've talked about on this show and the comment yesterday from the chairman of the joint chiefs that the Army will investigate this, I'd be shocked if there wasn't a court martial proceeding and this will come out.

KITFIELD

10:34:01
I would go back to the original statement that I don't think it's conditional that we don't leave anyone behind. So we'll sort this out once we have him back and he's healthy enough to stand trial, I imagine.

REHM

10:34:12
OK. Turning to another aspect of this whole story, Guantanamo. The president had pledged early on to close Guantanamo. It's my understanding that originally the Taliban wanted millions of dollars and they wanted 21 of the prisoners at Guantanamo. What's with Guantanamo? Are we ever going to close it? What's happening there?

BOWMAN

10:34:47
Well, right now, Congress is barring any Guantanamo persons from coming to the United States. And they've put conditions on them going to other countries. So, right now, you know, President Obama said he wanted to close -- he wants to close Gitmo, Guantanamo Bay, and plans to close it. But right now, frankly, his hands are tied by the Congress. So he can't close it right now according to law.

REHM

10:35:10
But can you close it by virtue of emptying it, James?

KITFIELD

10:35:15
Well, you could, but, as Tom says, they put conditions on transferring these people back to their home countries. So you're stuck betwixt and between, which is why they've pushed so hard to try these guys in federal courts, so you can put them behind bars for life and close Guantanamo and take this sort of -- this black mark off our reputation (unintelligible) ...

REHM

10:35:31
All right. But they were handed over to Qatar. Last night on CBS, there was a report that these five men have been reunited with their families. They are free to move about in Qatar. They are driving cars. What kind of confinement are we talking about? What did Qatar promise in the way of receipt of these five, David?

IGNATIUS

10:36:08
The answer is that that is still officially secret, and I have not penetrated the secrecy. We know that Qatar has offered assurances that, over this period of a year, they will not leave. The travel ban will be in effect, but whether that's through individual surveillance, you know, the bracelets of the sort that parole prisoners wear, we don't know.

IGNATIUS

10:36:34
I think the question of what happens after the year expires, and some way that the Qatari government and the Obama Administration will assure the American public that American lives in Afghanistan won't be at risk from these five after the year expires is going to be important in selling this to the American public and answering their questions.

REHM

10:36:55
Tom Bowman.

BOWMAN

10:36:56
That is the key point. There's a travel ban on these five Taliban officials for a year. What happens at the end of the year? So you're looking at next year. If they go back to Pakistan, let's say, go back to the fight, you're going to have a fewer number of American soldiers in there, 10,000 or fewer, at that time next year. Will this be, you know, more of a problem for the Americans?

REHM

10:37:18
And of course my question is, who is prohibiting communication among these released men with the Taliban while they're in Qatar? When we come back, we'll open the phones. I'd like to hear your thoughts on the release of Bowe Bergdahl and all the controversy surrounding it. Stay with us.

REHM

10:40:01
And welcome back. Time to hear your thoughts about the trade of Sgt. Bowe Bergdahl held by the Taliban in exchange for five apparently high-ranking Taliban officials from Guantanamo. Let's go first to Bob in Miami, Fla. Hi. You're on the air.

BOB

10:40:28
Good morning, Miss Rehm.

REHM

10:40:29
Hi.

BOB

10:40:30
How you doing? I just was -- you know, I'm just confused but not surprised. You know, if you're the American soldier, you know, it seems it comes with caveats based on the Republican definition. If a soldier is in Afghanistan, if he identified these individuals who held him as a potential threat to our country and to the people -- and to the soldiers that are serving and he is, like, one of the few that are left over there, I don't understand why there's a problem in making sure that this guy is safe. You know, I want this Republican to talk to this man's family saying it was not good for the American government to bring him back. I want...

REHM

10:41:12
All right. David Ignatius.

IGNATIUS

10:41:15
I think Bob the caller raises a really important point. Let's imagine for a moment that President Obama had not made this deal, and it's a year from now, and evidence comes to light as the Taliban is showing ever more grisly videos of Bowe Bergdahl in captivity wasting away, dying, and it comes to light that President Obama could have arranged a prisoner swap that would have gotten him home. Can you imagine the outcry that there'd be in the country?

IGNATIUS

10:41:45
Do you mean to say, Mr. President, that you could have gotten him back and brought him to trial, if that's appropriate, and you let that opportunity go? I mean, people, rightly, I think, would be indignant. And I think Bob gets at that point. It goes to this question. He didn't stop being an American citizen if he walked away from his unit. And he didn't, I think, stop deserving, you know, the promise that his country would come and get him, even if only to try him.

REHM

10:42:14
James.

KITFIELD

10:42:14
That's a very good point, and I'll take it a step further. Wonder if there's a beheading video. They've beheaded any number of Americans. They happened in Iraq. It's happened in Afghanistan. It happened to Daniel Pearl in Pakistan. What will we say then, that we didn't make a deal for this guy? The leverage we have in Afghanistan is slowly slipping through the hourglass as we pull troops out of that country.

KITFIELD

10:42:35
We were talking and negotiating with the Taliban already, trying to get them to the negotiating table with the Afghan government. We were talking about releasing Taliban as part of those negotiations. We are -- you know, this is -- for all these talk about you don't negotiate with terrorists, we're trying to end a war here. And when you end wars, you get in negotiations about prisoner swaps. It's always happened that way.

KITFIELD

10:42:55
And as much as you'd like to think -- I mean, these guys remind me that, you know, this is a war. These guys were not Taliban who we fought in the last decade. These were the Taliban leaders who ruled Afghanistan as a regime in the 1990s, brutally and horrible people, and gave sanctuary to al-Qaida. But this is more than just a terrorist group. It's a -- it was a former regime. We fought them, you know, look, for a war for 10 years. We're trying to wind that war down. You know, prisoner swaps are not that unusual.

REHM

10:43:24
All right. To Mark in Dallas, Texas. Hi. You're on the air.

MARK

10:43:30
Good morning, Diane. I have a question for -- I'm sorry. I should refer to him by his last name, but everybody calls him Gene. And so I hope I can direct (unintelligible)...

REHM

10:43:37
You're talking about Eugene Fidell.

MARK

10:43:41
Yes. Mr. Fidell. I'm interested in his assertion that the president's sort of constitutional authority overruled in this instance the clear dictates of the NBAA, as far as notification goes. It seems to me that there's got to be some mechanism absent to, you know, penalties in the law to handle those kind of conflicts.

MARK

10:44:07
It's kind of Nixonian to have, you know, a situation where the president can simply say, well, I don't think it's constitutional, so I'm going to disregard this law and, you know, it's not illegal if I do that. The other point I'd make quickly is you can't simultaneously hold that the president had the authority to release these five Taliban and is still constrained by Congress somehow in shutting Gitmo.

FIDELL

10:44:41
Right. Well, what's the question? (laughs)

MARK

10:44:46
My question is what is the mechanism for actually resolving that conflict where the president, you know, thinks a law might be unconstitutional? But, you know, it seems pretty clear that he was in violation of that law. So, you know, what do we do in a case like that?

FIDELL

10:45:02
Well, the question is the law may have a flaw in it and -- or may operate in a way that exceeds Congress' power. So it's not -- it's the beginning of the conversation to set up attention between what Congress has required and what the president has done. That's the beginning, not the end, of the conversation. Congress has -- I know this will shock everyone. Congress, from time to time, does things that violate the Constitution.

FIDELL

10:45:33
That's why we have a written constitution. And the president has the same right as any other branch of government. There -- we have three, sorry, friends, not four but three, and he has the same obligation to be careful about husbanding the power that the framers of the Constitution vested in him in the Constitution itself. So do -- okay. Go ahead. (unintelligible).

REHM

10:45:57
James. Go ahead, James.

KITFIELD

10:46:01
Just to make a point that builds on that, I mean, ever since the Congress passed a War Powers Act in 1973 because of its feeling of impotence about the Vietnam War, there's been a constitutional argument that no president since Nixon, you know, vetoed that -- Congress passed it over his veto -- no president since has really taken Congress', you know, the War Powers Act as constitutional. And then so there's been this tension ever since then, and this is just another example of it.

REHM

10:46:26
All right. To Henry in Yellow Springs, Ohio. You're on the air.

HENRY

10:46:34
Yes, please. I would remind the country that, in Korea, there was an exchange of prisoners, hugely disproportional in numbers. A second point I was -- I flew combat in Vietnam and was very conflicted about that war there. And lastly, all this talk about impeachment, I would say, let's call the bluff of those that want to impeach the president. They have control of the House. Let them impeach the president. Bring up charges and let's see how they do.

REHM

10:47:20
Do you expect that to happen, David Ignatius?

IGNATIUS

10:47:25
Oh, you know, there's been so much talk about impeachment, people have mentioned impeachment in connection with Benghazi which seems completely crazy. The point I wanted to make in response to Henry is that this question of leaving behind American POWs haunted the United States after our war in Vietnam.

IGNATIUS

10:47:50
And we have two senior members of the cabinet of President Obama, Secretary of Defense Chuck Hagel and Secretary of State John Kerry, who were veterans of the Vietnam War and who bear that debate and the pain of it. It was painful especially for Democrats who were accused often of leaving behind our POWs and MIAs and not satisfactorily resolving these issues.

IGNATIUS

10:48:17
So I would think for any president, you know, aware of that legacy that the obligation to make sure that you bring everybody back before you end a way and not make the mistake we made after Vietnam of attenuating that process would be strong. And I don't really think that it's changed by anything that we would learn about Bowe Bergdahl and his dissatisfaction and what prompted him to leave his unit that morning.

REHM

10:48:46
Here's an email from Larry in Berlin, Germany. He says, "You're raising many questions as to the legality of Bergdahl's walking away. You paid little heed to the reasons for his disillusionment. According to reports, he witnessed an American vehicle run over and kill an Afghan child more or less with impunity." Let's talk about the legality of that. And it goes to Henry's point of the feelings of conflict in war, the feelings of having to kill another human being or face another human being in conflict. Tom Bowman.

BOWMAN

10:49:38
Diane, I've spent a lot of time with troops in the field in both Iraq and Afghanistan. And a lot of people are conflicted about both wars. Some said, listen, I don't know why we're here. Others would say, this is my third tour. It's about time for these people to take over control of their own country. You heard that repeatedly.

BOWMAN

10:49:55
But the question here is going from being conflicted to actually walking off your base, leaving your post, leaving your comrades behind, and that's what the military's going to have to grapple with, you know, once he's, you know, ready for -- to be questioned by the military. Did he go AWOL? Did he plan on returning? Or was he planning on deserting, which is the state of mind -- I'm not coming back, I'm never coming back.

REHM

10:50:21
And couldn't change his mind once he perhaps had one thing in mind as he walked off and then be faced with the reality.

BOWMAN

10:50:33
And there were some who were saying that he really wanted to help the Afghan people. And he was really concerned about that local school where they saw him crawling through the weeds. And it's interesting that they found him over by that school. He was, again, very concerned about the way they were running the war. He had to help the Afghan people even more. So, again, we're not going to know until he's questioned. But perhaps he thought that he could go in and do something, help, talk to people. He was there for a day or two or three, and then he was grabbed by the Taliban. And that was over.

REHM

10:51:06
James.

KITFIELD

10:51:07
You know, I think we're all sort of in violent agreement here. You know, whatever happens, we can sort out in a court of military justice. But, you know, we've all seen enough of these conflicts to know that what they do to people mentally, you're not -- it doesn't sort of, you know, you can be sympathetic to someone who breaks under these situations. We've seen that many times in both these wars. This guy just might have broken from all the horrible things he'd seen. That doesn't mean you don't bring them back.

REHM

10:51:31
And Eugene Ridell. (sic)

FIDELL

10:51:33
Right. Look, there -- our soldiers do not check their beliefs when they put on their uniforms. We have citizens -- we have many noncitizens, by the way, in the military, but, you know, we don't require people to abandon their political or other or humanitarian views or impulses or instincts when they put on the uniform. However, that does not mean that GIs can exercise self-help as an expression of their humanitarian or other instincts.

FIDELL

10:52:09
For example, there was a junior officer who found himself in Haiti at one point. And he thought that he should do something about the terrible conditions in the Haitian National Penitentiary. He wound up getting court martialed for that. You cannot sort of take things into your own hands, even if you disagree with some policy that the management has adopted.

FIDELL

10:52:31
We also do not have what's called selective conscientious objection. In other words, a member of the service does not have a privilege to say, well, you know, I don't really believe in the operation in Iraq, so include me out. Or I would like to be helping the Afghan people rather than doing what seems to me to be not helping the Afghan people. That's not an option given to active duty personnel.

REHM

10:52:59
And you're listening to "The Diane Rehm Show." On a purely political visual circumstances, should there have been the celebration in the Rose Garden? David Ignatius.

IGNATIUS

10:53:19
I think that that shows that the White House did misread the politics of this. Again, the details of what Bowe Bergdahl did and what motivated him are going to be sorted out probably in a court martial. That doesn't change the joy that his parents feel to have him home, even if he's going to end up spending time in a military prison. I think the initial White House response was celebratory without anticipating all of these questions. And why was that? And, you know, sometimes we've seen this White House, like most, can misjudge the public mood. There were just more loose ends in this case than they seem to have understood.

REHM

10:54:04
James.

KITFIELD

10:54:04
An alternative explanation is they anticipated the heat they were going to draw and they wanted to have that image out there that, you know, beyond and above all the things that people are going to say about this decision, you know, this is about reuniting an American soldier with his family. They might find that to be a useful sort of image to have out there as they're taking all this heat from Congress.

REHM

10:54:21
All right. And finally to Marguerite in Tampa, Fla. Hi. You're on the air.

MARGUERITE

10:54:28
Thank you for having me on the show. I have one question to the panelists. Why five to one? If anything, why not just one for one?

REHM

10:54:36
Why five for one, Tom Bowman?

BOWMAN

10:54:38
That was the deal the Taliban wanted. Initial...

REHM

10:54:39
They wanted 21.

BOWMAN

10:54:42
Initially, they wanted a million dollars and 21 of their fighters released. And then it went down to five over the year. So that was the deal, said five or nothing.

REHM

10:54:50
So what does all of this tell us about the level of discussion going on between the U.S. and the Taliban, David?

IGNATIUS

10:55:00
This has opened a window on one of the really interesting pieces of secret diplomacy. It began with the United States in a direct contact in November 2010. It continued in a series of secret meetings in 2011. Originally, this prisoner exchange was supposed to be a confidence-building measure on the way to a real dialogue between the United States and the Taliban about some kind of political settlement in Afghanistan. A big question we haven't talked about, has this made that dialogue more possible? And is that something the administration is thinking about? Do they still have the political maneuvering room after all the flap about this to do what I think they'd like to do?

REHM

10:55:37
Tom Bowman.

BOWMAN

10:55:37
It's interesting to note who was holding Bergdahl. It's the Haqqani network based in Pakistan, and people I've talked with over in Afghanistan -- in Eastern Afghanistan where I've spent a lot of time. They all say you cannot negotiate with a Haqqani network. You have to take out the leadership. And Gen. Joe Dunford, the commander in Afghanistan, recently said the greatest threat to U.S. forces is the Haqqani network.

REHM

10:56:01
James, last word.

KITFIELD

10:56:03
On David's point, I mean, a part of those talks, we opened very briefly a Taliban office in Qatar and had to close it very quickly 'cause the Afghan government got upset. But the Qataris have emerged as a key sort of link in these talks we still want to get going with the Taliban.

IGNATIUS

10:56:19
Just one final thought to Tom's question, we have learned that the Quetta Shura, the central core leadership under Mullah Omar, does have enough control over the Haqqani network that they could get this release done. We didn't know that before.

REHM

10:56:34
Well, lots of questions remain. Thank you all for joining us, David Ignatius, Tom Bowman, James Kitfield, Eugene Fidell, and Gerald Sutton. Great conversation. I'm sure it's going to continue. Thanks for listening, all. I'm Diane Rehm.

ANNOUNCER

10:56:57
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