President Obama with Jani (l) and Bob Bergdhal in the Rose Garden on Saturday. (John Harrington/pool/EPA) President Obama with Jani, left, and Bob Bergdahl in the Rose Garden on Saturday. (Pool photo by John Harrington/European Pressphoto Agency)

The negotiated release of Sgt. Bowe Bergdahl is an odd mix of celebration and concern. All the things that made it possible Saturday for the 28-year-old to leave Afghanistan after nearly five years of captivity are the very things that raise serious questions about how it all happened.

Bergdahl walked off base on June 30, 2009, with “water, a knife, his digital camera and his diary,” according to a 2012 profile of the soldier in Rolling Stone by the late Michael Hastings. His story revealed that Bergdahl became disillusioned with the war effort in Afghanistan when a fellow soldier was killed five days earlier. Hastings also reported that Bergdahl’s commanders didn’t know “whether Bowe was a deserter, a prisoner or a casualty.” From the moment he was reported missing until May 31, 2014, the United States never stopped looking for him, never stopped trying to bring him home.

“He wasn’t forgotten by his community in Idaho, or the military, which rallied to support the Bergdahls through thick and thin,” President Obama said Saturday evening in the Rose Garden with Bergdahl’s parents behind him. “And he wasn’t forgotten by his country, because the United States of America does not ever leave our men and women in uniform behind.”

Bergdahl wasn’t left behind, because the Obama administration worked with the Qatari government to secure his freedom. The deal called for the release of five Taliban officials in U.S. military custody in Guantanamo Bay to Qatar, where they will remain under a travel ban for a year. Federal law requires Congress to be notified at least 30 days before any prisoner transfer and to assure the relevant committees that those freed prisoners won’t pose a threat to U.S. security. That Congress wasn’t notified until after Bergdahl was freed was the right call.

Calling it a “sacred obligation” to bring Bergdahl home, National Security Adviser Susan Rice said on ABC yesterday, “We had reason to be concerned that this was an urgent and an acute situation, that his life could have been at risk. We did not have 30 days to wait. And had we waited and lost him, I don’t think anybody would have forgiven the United States government.” Rice is 100 percent right on that last point. The second-guessing and cries of weakness from Republicans had it come to light that Obama failed to seize the opportunity to bring home the only American soldier held prisoner in Afghanistan, especially after announcing a timetable for the U.S.’s departure from that country, would have been deafening.

That’s not to say that the current criticism of the president’s actions is not without merit. I don’t have a problem with how the administration worked with the Qataris to secure Bergdahl’s release. Prisoner swaps are as old as warfare itself. For some Republicans to pretend that Obama blazed new ground here is ridiculous. But it is reasonable to worry about what happens to the Taliban Five once they get to Qatar and after their one-year house arrest in the Persian Gulf nation. The president is making a big gamble that the newly freed Afghan warriors won’t go back to their murderous ways.

And then there is the signing statement, which is a legal way for the president to reinterpret or ignore the law he is signing if it conflicts with his view of executive authority. When Obama signed the notification bill into law, he attached a signing statement that said the president could “act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.”

During the 2008 campaign, candidate Obama railed against the practice used liberally by President George W. Bush on any number of laws. “We’re not going to use signing statements as a way of doing an end-run around Congress,” he said then. That he has grown comfortable with “doing an end-run around Congress” doesn’t have as much to do with trying to short circuit the power of recalcitrant congressional Republicans as it does with his willingness to use the power of the executive to protect the growing prerogatives of the presidency.

So, while I cheer Obama’s doing everything possible to bring Bergdahl home, I’m troubled by the legal mechanism he used to do it and the Taliban fighters who gained their freedom because of it.

 

Follow Jonathan on Twitter: @Capehartj