Judge Andrew P. Napolitano*
On the same weekend that the Secretary of Veterans Affairs resigned amidst the scandal of veterans dying before the government’s doctors could treat them in government hospitals, on the heels of another revelation of NSA unconstitutional spying in which federal agents have been seizing the digital images of our loved ones and friends that have accompanied our emails, and a week after the White House intentionally or negligently revealed the true identity of the CIA station chief in Afghanistan, President Obama announced a new foreign policy initiative called “No One Left Behind.” The reference was to the sole service member then held in captivity in the venue of America’s longest war, the one most Americans have forgotten: Afghanistan.
Late last week, Obama announced the release of Sgt. Bowe Bergdahl, who had been held by the Taliban for more than five years. Bergdahl apparently shed his weapons and equipment, sent his personal belongings home, and walked into the hands of his captors one day, unwilling to remain a part of his military unit and largely ignorant of the fate that faced him. The president must have been determined to bring Bergdahl home at all costs, because the manner of his doing so makes it likely that he violated federal criminal law in the deal he cut with Bergdahl’s captors.
The government apparently negotiated with the Taliban, a group characterized by federal law as a non-state terrorist organization. The deal required the U.S. to release five former senior Taliban intelligence and military officials from the American prison camp at Guantanamo Bay, Cuba. Therein lies the legal and constitutional conundrum generated by the post-9/11 contempt for the Constitution that has been a hallmark of Congress and the Bush and Obama administrations.
The concept of Gitmo as a holding facility of endless duration for uncharged and untried human beings is unrecognizable when viewed through the prism of the Constitution, and in all five cases in which this concept was addressed by the Supreme Court, the court directed the government to put the detainees on trial before a neutral public tribunal using rules that were in place before the detentions began. Both administrations have been averse to public trials, preferring to keep secret their own behavior in the manner of arresting, detaining and interrogating these people. As a result, few trials have been held, only two people have been convicted and both of them were released based on the prison time they had already served.
Yet the release of these Taliban leaders in a prisoner swap materially assists the Taliban in such a way as to be criminal. How can it be criminal to release a prisoner? It is not a crime to release a prisoner who has been acquitted, but it is criminal to release an untried prisoner whom the government reasonably believes will aid a terrorist group. Federal law prohibits any person from providing material assistance to a terrorist organization, even if the organization fails to use the assistance, and even if the use of it produces no measurable harm.
Material assistance includes anything from money to maps to professional services; it includes the appearance of support and even a false belief in support. It was intended to criminalize intentionally causing any assets of value to come into the control of any non-state terrorist group that American law has condemned.
This is the same statute that the courts have interpreted so broadly that merely listening to a harangue by a terrorist leader at his training camp, without any further behavior, is considered providing material assistance to the group that runs the camp. If hard assets like money and political support are covered by the statute, then human assets are covered, as well. This is the same statute that has been employed successfully to prosecute those who fall victim to FBI stings, in which the defendant typically is a dim-witted person led by FBI agents to believe falsely that he is assisting a terrorist group, but no actual assistance ever flows to the group.
The president no doubt will argue that under the Constitution he and he alone makes foreign policy and, as well, as commander in chief of the military, he enjoys the constitutional authority to make these prisoner swaps. Yet, the president has sworn an oath faithfully to enforce all federal law. He cannot knowingly or legally exclude himself from the obligation to comply with laws with which he disagrees -- that’s the Nixon argument ("When the president does it, that means it’s not illegal."), which the courts and modern history have rejected.
The president has a serious problem with competence and with fidelity to his oath. In one week, he has alienated and demoralized much of the intelligence community by revealing the true name of one of them and by releasing their worst nightmare back into the theater of Middle East warfare. He has, as well, flagrantly failed to enforce federal law by materially aiding a non-state terrorist group condemned by American law. This is almost inconceivable in an American president.
Yet it is almost predictable with this president. In our Orwellian post-9/11 world, Congress thinks it can alter basic constitutional principles, and the president thinks he can enforce only the laws he likes. Did we break away from a king, who thought his powers were given to him by God, 240 years ago only to elect a president who behaves like a king? Thomas Jefferson saw this coming in his final years, when he argued that an elected despot is not the government we fought for.
It surely is not the government Jefferson fought for; but today, it is the government we have.
*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”