The Two Kinds of Bowe Bergdahl Backlash

The release of an American prisoner of war from Taliban custody raises questions about how he was captured and the legality of the exchange that freed him.

A billboard near Spokane, Washington, called for Bowe Bergdahl's release in February. (Jeff T. Green/Reuters)

No sooner had the yellow ribbons started to come down from the trees than the backlash started up. Not everyone is delighted about the Obama administration's deal to free American POW Bowe Bergdahl by exchanging him for five Guantanamo Bay prisoners.

It's pretty easy to view this cynically, as a sign that in these times, everything is political and the country can't come together over anything. And to a certain extent that's true: If dueling, pro-forma charges of politicization from official Democratic and Republican spokesmen don't instill pessimism, what will? But while there are plenty of controversies that seem far from producing any meaningful revelations, despite extensive inquiry—Benghazi comes to mind—there are important constitutional and policy issues at stake in this case.

First, there's some personal backlash against Bergdahl, involving the circumstances of his capture. In a searing piece on The Daily Beast, Nathan Bradley Bethea, a former infantry officer in Afghanistan, lays out the anger many servicemembers feel toward Bergdahl. They say he wasn't captured; he walked away from his post, and Americans died trying to rescue him:

The Daily Beast’s Christopher Dickey later wrote that "[w]hether Bergdahl…just walked away from his base or was lagging behind on a patrol at the time of his capture remains an open and fiercely debated question.” Not to me and the members of my unit. Make no mistake: Bergdahl did not "lag behind on a patrol,” as was cited in news reports at the time. There was no patrol that night. Bergdahl was relieved from guard duty, and instead of going to sleep, he fled the outpost on foot. He deserted. I’ve talked to members of Bergdahl’s platoon—including the last Americans to see him before his capture. I’ve reviewed the relevant documents. That’s what happened.

What can one say to this? It's hard not to celebrate Bergdahl's return, but it's equally hard to dismiss the anger that these veterans feel. Soldiers depend on unity and cohesion, and they displayed that in searching for their missing comrade. If that was in reaction to his desertion, that was a betrayal of the same principles that freed him. But former Army officer Andrew Exum (who praised Bethea's story), laid out a case against this sort of backlash:

Don't count on many politicians taking up this strain. No one wants to be seen as opposing bringing an American soldier home, deserter or no, especially after an anxious, five-year-long vigil.

But some Republicans have criticized the White House for how it executed the swap. There's lingering discomfort stateside about negotiating with the Taliban, though it's been happening for years now. Even absent that unease, the exchange released five pretty nasty guys from Guantanamo Bay. They'll likely be a thorn in the side of the Afghan government at home and could cause the U.S. problems too. And the deal was negotiated without informing Congress, breaking a 2013 law that says an administration must give at least 30 days notice before transferring anyone from Gitmo.

This strategy of attacking the how but not the why is not without political risks itself, as no less a messaging guru than Frank Luntz points out, tweeting: "Pro Tip: Attacking the actions that led to the release of Sgt. Bowe Bergdahl is a surefire way to lose in 2014." I'm no Frank Luntz, but I'm not so sure. The issue has dropped somewhat from the national radar so there's not a ton of fresh polling data, but Americans are still generally in favor of running the Guantanamo Bay camp and oppose transferring detainees to American prisons—much less to freedom in Afghanistan. The painful irony is that there are detainees whom the administration has said it wants to release, but it either can't get congressional authorization to do so or can't find somewhere to send them. Meanwhile, five prisoners who seem much more potentially dangerous walk free.

The charge that seems to have the most merit is also the one that may have the hardest time sticking, because it's obscure. When Obama signed the National Defense Authorization Act, a provision of which required that he notify Congress before any detainee transfer, he issued a so-called "signing statement," essentially a document in which he said he didn't feel bound by a law passed by Congress and duly signed into law by him because he felt it contradicted existing law: "In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict." When pressed on how the White House circumvented the law, Defense Secretary Chuck Hagel cited the signing statement.

If that sounds legally questionable to you, you agree with Democrats in the George W. Bush era—including Senator Barack Obama. Democrats raged against Bush's use of signing statements, which they insisted was unconstitutional. Answering a questionnaire from reporter Charlie Savage, then of the Boston Globe, in 2008, Obama wrote:

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation .... No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

Obama has in fact issued far fewer signing statements than Bush, but he hasn't eliminated them. Since Bergdahl's release, conservatives have been far more vocal about the evils of signing statements than they were in the 2000s, while Democrats have been notably more quiet. But the White House will have to explain why its transfer doesn't betray the principles Obama laid out in 2008—and, more importantly, why the transfer wasn't plainly illegal.