Wow, life has kept me busy. I had been wanted to blog and blog often, but we have a new baby boy!!! His name is Lucas (posting pictures soon). He came to us early, but all is great in casa Chávez. There is so much I want to write about! To keep me focused, I will pick just one–Bergdahl Swap.
I’m very conflicted about trading Gitmo detainees for a soldier. We have been told that Gitmo would be closed at some point and moving the detainees to their country of origin (so long as they are stable and secure) was a very real possibility. So, if they are going to be released anyway, why not get one of our guys back? I find it disappointing that anyone would argue saving one of our own was wrong because they weren’t given a 30 day notice. Imagine having your life on the line and rescue is held up waiting for the 30 days to run out; it’s ridiculous. Where are all the limitations on giving terrorist guns and money to fight proxy wars for us?
Many soldiers are disillusioned. I recall, during my time in the Air Force, hearing members of every branch discuss some sort of disappointment in the war on terrorism. It doesn’t surprise me that Bergdahl, also, was thinking the same thoughts that are expressed everyday by service members. Why are we fighting? Who are we fighting for? Etc… We just had the 70th Anniversary of D-Day. Everyone refers to the WWII as the Greatest Generation because they fought to save the world. Why isn’t this generation the greatest generation? Is it because we aren’t fighting to save the world? Is it because we aren’t fighting to save ourselves? If you ask me, every generation that is sending sons and daughters to fight on our behalf, is the Greatest Generation.
Enough of that. Lets learn something, together. All this hoopla about the President breaking the law when he traded 5 Gitmo detainees for a soldier should cause you to think, “well, what law?” The law politicians are referencing is the ” National Defense Authorization Act for Fiscal Year 2014.” More specifically, Section 1033. The NDAA is about the budget. Here it is (I highlighted the parts I find relevant):
Requirements for certifications relating to the transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba, to foreign countries and other foreign entities
(a) Certification required prior to transfer
(1) In general
Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense to transfer, during the period beginning on the date of the enactment of this Act and ending on December 31, 2014, any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.
Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance).
A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that—
(1) the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred—
(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
(B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility;
(C) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual;
(D) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;
(E) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and
(F) has agreed to share with the United States any information that—
(i) is related to the individual or any associates of the individual; and
(ii) could affect the security of the United States, its citizens, or its allies; and
(2) includes an assessment, in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or entity in relation to the Secretary’s certifications.
Here’s Subsection d. in case you were curious:
(d) National security waiver
(1) In general
The Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in subparagraph (D) or (E) of subsection (b)(1) or the prohibition in subsection (c), if the Secretary certifies the rest of the criteria required by subsection (b) for transfers prohibited by subsection (c) and, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that—
(A) alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;
(B) in the case of a waiver of subparagraph (D) or (E) of subsection (b)(1), it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated, but the actions to be taken under subparagraph (A) will substantially mitigate such risks with regard to the individual to be transferred;
(C) in the case of a waiver of subsection (c), the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken under subparagraph (A) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and
(D) the transfer is in the national security interests of the United States.
I ain’t no lawyer, but it appears to me that transferring detainees is not prohibited because the law says we can so long as we provide 30 days notice that it’s going to happen. What is prohibited is using the DoD budget to transfer detainees without giving the 30 days notice. Congress doesn’t get to approve or disapprove the transfer. We already know that briefings were given since at least December 2013. One could argue, successfully, that the briefings were written certifications given 180 days ago. Congress knew about the deal, they just didn’t know the exact date and time and it sounds like neither did the White House because the hostage situation was a dynamic situation. But congress knew. So, what 30 day notice are they talking about?
Right or wrong, our President is bold. He opted to save the life of a soldier. He told Pakistan to go kick rocks when he ordered the Bin Laden raid. He’s bringing our troops home (too slow, in my opinion)…