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Three Questions About The Bergdahl Deal Answered

I

Does it matter if Sgt. Bowe Bergdahl deserted his post in 2009, after having become disillusioned with the war in Afghanistan, only to be captured by the Taliban and held prisoner of war for five years?

Of course it doesn’t matter.

Maybe he deserted, maybe he didn’t. If there’s good cause to think he did, a military court will decide the truth and if convicted of that crime in accordance with United States law he will be punished in accordance with United States law. If found not guilty, he’s not guilty. Until then, he’s entitled by our laws to a presumption of innocence.

Point is, as of this week, he is once again subject to our laws and not the whim of a Taliban faction.

Whether he was disillusioned with the war in Afghanistan is hardly relevant, either. To him or to us. As a soldier, his job is to serve and no one forced him to join the service; as a polity, it is for us to decide what form that service takes and for better or worse, we sent this young man off to war. So either he did his duty or he was derelict; his attitude or political thoughts are simply irrelevant.

The punishment for desertion is to be found in Article 85 of the Uniform Code of Military Justice. The amount of punishment is left to the discretion of the court-martial and can include death but is substantially more likely to be a prison sentence and a non-honorable discharge. But it is not “being left to rot in the hands of the enemy.”

An important message to the men and women in uniform: you are an American soldier first; even if you are a criminal second. And the “American” part of being an “American soldier” means you have rights and that we’re simply not going to let you rot in enemy captivity if it’s within our power to get you back. Seriously, how could we even have a functioning military if the government’s policy was anything other than this?

II

Now. Should President Obama have set five Taliban bad guys loose in exchange for Bergdahl?

Damn right he should have. That’s how valuable an American soldier is.

We expect great loyalty and great sacrifice from our men and women who volunteer to go fight for us. The loyalty we owe them in return is captured nicely by the slogan “no one left behind.” Even a suspected deserter. He may stand trial for desertion and face punishment for it if convicted, but he’ll do it at home where he belongs. A failure to have taken advantage of an opportunity to get a solider back would seriously harm military morale.

Besides, our kill ratio against the Taliban is higher than 5:1. We’re better-armed, better-intelligenced, better-supplied, better-trained, better-supported than they. So in the coldest and most bloodless of military terms, one U.S. soldier is worth more than 5 Taliban.

And, certainly by this point, should we have anyone prisoner in Guantanamo? I realize there are some Very Bad People in there who can’t be let at their liberty. But they are within our power and subject to our laws and we don’t keep people prisoner without giving them trials. It is a continuing shame on America that we keep people prisoner well away from the theater of war, affording them neither due process of law nor the status of prisoners of war under the Geneva Convention.

III

Finally, did the President release these five people out of Guantanamo without consulting Congress, or at least Congress’ designated leaders, first, as the law requires?

Yeah, it sure looks that way. And it sure looks like there was time to cut them in on the intelligence loop, too. It’s done now, there’s no undoing it. An apology seems to have been issued, but that’s pretty thin ketchup for simply circumventing the law, even if there was a signing statement about, well, exactly this sort of thing.

Of course, that makes this deal pretty much exactly like the technically extra-constitutional Louisiana Purchase: the President can say, “We had to act fast to take advantage of the opportunity and so that’s what we did,” even if that’s not strictly true, and enough people will overlook the legal niceties. It’s wartime, after all, and the President is commander-in-chief.

There’s something to that, which is why there may have been a breach of law that the courts ought not to involve themselves in, as it’s pretty clearly a “political question.” I suppose the pro-Biden faction of our polity will be making noise about this for some time to come, but I personally can’t find it within myself to say that getting a U.S. soldier freed from enemy captivity is a “high crime or misdemeanor” even if it was a violation of a Constitutionally-questionable law. I also doubt that anyone who would vote in favor of impeachment would have needed so robust an excuse as this, and anyone who would have voted against impeachment before will find this action particularly persuasive — but that’s a political issue, not really a legal one.

 

We brought our boy home. That’s what matters.

 

Burt Likko
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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127 thoughts on “Three Questions About The Bergdahl Deal Answered

  1. I agree with this. There really aren’t enough faces or palms to deal with the metric crap tons of derp coming out of the right-o-sphere on this.

    One thing i find extra hilarious is the fear, apparently bordering on pants wetting, that the five dudes we released are some sort of great danger. Oh they may have been bad guys but they have all been in GB for several years. I think one of then has been there since 2004. These guys are sporking wizards with magic powers they can use against us. Even if their comrades will trust them with any secrets, since they could rightly fear we flipped them, and even if they weren’t scarred by years of prison and even if their skills and knowledge weren’t years out of date I’m guessing their positions have been filled. Heck it will take them months just to catch up on old HR memos and shaking hands with new co-workers. We got our man back with no risk to us for guys who MAY have been bad guys. Good for us, this is all part of the highway out of the Stan.

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    • There really aren’t enough faces or palms to deal with the metric crap tons of derp coming out of the right-o-sphere on this.

      Well, they’re caught between Support Our Troops and Cleeks Law. And I think we all know what a sticky place that is. Derp crap.

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    • “One thing i find extra hilarious is the fear, apparently bordering on pants wetting, that the five dudes we released are some sort of great danger”

      If there isn’t great danger, why do we need to Qatari’s to look after them for at least a year? Why is President Obama maintaining that we’ll keep tabs on them. (with the implication from unsourced quotes that they’ll be droned if they get out of line) If there’s no risk to our guys, why did the President say that ‘there’s a certain recidivism rate that takes place?

      (I also like how the wisdom of heeding the advice of the experts in the professional bureaucracy – in this case the ones that labeled these guys ‘high risk’ – become completely contingent on whether or not one agrees with the decision made by The Decider)

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      • Because there is a certain recividism that takes place? (Although lower than US prisons, strangely).

        But mostly because if we park them in Qatar for a year, that means they don’t go back to Afghanistan until after the last of our troops leave. Which means even if they wanted to, they wouldn’t be able to. Which means a potential headache avoided.

        They’re Taliban, not AQ, right?

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      • The last of our troops aren’t leaving until 2016, per the President’s latest stated plan. (which I think still leaves some wiggle room for ‘advisors’ past then should the next Afghan government want to strike such a deal – which both Presidential candidates have indicated they do)

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      • We’re down to 10,000 by the end of the year, of which 8000 are trainers for Afghan forces.

        It’s over by the end of the year. We may still have troops there, but not in any sense a fighting force.

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      • “It’s over by the end of the year. We may still have troops there, but not in any sense a fighting force.”

        That doesn’t mean they’re not targets. As everyone acknowledged when discussing the roles of women in combat over the past decade plus, you don’t necessarily need to be toting a rifle through the mountains to be on the battleground.

        And this wasn’t the talking point (‘oh they’re just trainers, it’s like they’re not even there’) when the Iraq SOFA discussions were happening.

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      • They’re five guys — Taliban guys, so technically POWs. They’re not freaking super-villians.

        Look, if those five guys are — after years of cooling their heels at Gitmo and a year in Qatar — going to be a problem to the 8000 trainers living on military bases and not patrolling, then we are totally and absolutely f*cked and should basically go isolationist and possibly just turn the country back over to England.

        They’re in Qatar for a year because the GOP would whine like kicked dogs about it otherwise, not because they’re a threat.

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      • “They’re in Qatar for a year because the GOP would whine like kicked dogs about it otherwise”

        We’ve just said that the GOP will do so regardless of what Obama does, so either Obama is unfathomably stupid for not realizing this by now, or that’s not the reason.

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      • Did it not occur to you that Obama stuffed them in Qatar as a defense against those inevitable whines?

        Sure, it won’t stop the whining, but it gives an obvious response that makes those whines look stupid. Stupider.

        Speaking of stupid, did you see Oliver North opened his big fat mouth? He’s demanding to know if we ‘paid a ransom’.

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      • “If there isn’t great danger, why do we need to Qatari’s to look after them for at least a year? ”

        Insurance. Remember, if these guys went back to Pakistan/Afghanistan and made a video, it’d be a political PITA.
        Even if after that they were shown a nice retirement village to hang out int.

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  2. #1 – I think I agree. At least, I’d need to be convinced otherwise. But I also agree with James Joyner that the UMCJ system needs to run its course with this one (which it looks like it wasn’t going to, but now will).

    #2 – I lack a good reference point for what kind of deals we have historically made for prisoner swaps. I can go along with “these five are okay” though I hope we weren’t pushing the envelope in this particular case. It’s obviously not a blank check, though that there are so few POWs these days makes me less concerned than I might otherwise be.

    #3 – This one is tricky. Because if something is illegal but there is nothing that can be done to prevent it and nothing that can be done after, is it illegal in any meaningful sense? That seems to be where we are here. I don’t support impeachment, but we can’t make a new rule or something because the rules were ignored. So what can be done? If nothing, then I am inclined to say that the answer to my question is “No.”

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  3. The only reason why a big fuss is being made about the deal is that Republicans see everything done by Obama as evil.

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    • Or maybe it’s because President Obama declared ‘this is what you do at the end of wars’ which may be a surprise to the 30K some-odd troops still in Afghanistan, not to mention the Afghans themselves. (Senator McCain’s repatriation only came after the Paris Peace accords)

      And maybe these issues don’t have actually “easy answers”. If they did, this issue would have been solved years ago.

      But at least the original post defended Obama’s actions on its merits, and didn’t immediately deflect to the reaction in the derpoverse.

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      • Do you honestly believe that had Obama not made this deal and his reluctance to do so was what got out this past week, that the exact same people who are publicly calling for his impeachment would be praising him and not, you know, calling for his impeachment for leaving a man behind?

        Because if so, you and I live in very different universes.

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      • You mean the ones that are leaving by the end of the year or so?

        My cousin is currently deployed — he’s part of the last groups out. (He can’t stop telling us about how he gets to help blow up everything they’re leaving behind. Very excited).

        Afghanistan is over. We’re withdrawing already, what’s left is effectively a skeleton force for the final stages of the drawdown.

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      • My cousin is currently deployed — he’s part of the last groups out. (He can’t stop telling us about how he gets to help blow up everything they’re leaving behind. Very excited).

        This is so awesome. Shock and Awe in reverse.

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      • Derpers gonna derp.

        Do you honestly think that in a Romney presidency striking the same deal right now all the people that are either praising the President or just pointing out the derp wouldn’t have had some criticisms (cogent and otherwise) of this deal?

        Because really, I can’t find one non-right wing site or source (except maybe OTB) that thinks this deal isn’t either the bees knees or are simply just criticizing the criticisms

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      • You really can’t find one? I am on the road today, but I’ll post links later (unless someone else beats me to it).

        As to your question, no I don’t. Which is why the answer to Burt’s question — why are we taking about this — has almost nothing to do with what happened two years ago in Afghanistan and everything to do with what Blue vs. Red things going on right here.

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      • This is so awesome. Shock and Awe in reverse.

        Pretty standard. Basically if it costs more to return and repair it than buy a new one, they blow it up. They also blow up any facilities they don’t want leaving behind.

        Tanks, computers, runways, whatever. It’s straight cost-benefit analysis. Last soldiers deployed to that area get tasked with carrying it out, although my cousin — not being a demolitions expert — is just gonna be rubber-necking, I’d imagine.

        It’s not like it’s “Learn to use C-4” day. :)

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      • – weapons and anything with useable intel I understand blowing up; but things like “runways”, do they at least give the locals the option to keep, if it could be useful to them?

        Or is it a blanket “we brought it, so we blow it up” kind of thing?

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      • do they at least give the locals the option to keep, if it could be useful to them?

        Depends entirely on the military’s view of the locals. The government of Afghanistan is technically our ally, and we’re training their troops, so we’ll probably leave a lot of infrastructure standing.

        OTOH, if it’s in the middle of nowhere and we think the people likely to move in are people we don’t like, we’ll blow it up. (or blow up only certain areas — those that can be considered ‘cover from bombs’, and let them move in. Then blow it up again, from a drone or plane).

        Blowing up runways and stuff is kind of time-consuming and expensive, but taking down fortified buildings and watch-towers and stuff less so.

        Equipment is either handed out or blown up. Facilities and infrastructure is more dependent on circumstance.

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      • OK, that makes sense. Things that couldn’t be easily, directly turned against us or our allies later would seem to be a no-brainer to at least offer to the locals, a cheap way to buy a tiny bit of goodwill on our way out (I’m thinking things like tents, food/medical supplies, and like I said, pavements like runways).

        Even something like a damaged truck that is too expensive for us to return and repair, could be stripped for useful parts or scrap for them rather than just blowing it up, which could look like a final wasteful insult to a local.

        But of course we’d want to give them the option, and not just leave junk everywhere.

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      • No doubt, somewhere, there is a giant list of what can and can’t legally be handed to locals, and what has to be blown up.

        Trucks, though — all vehicles are military grade, so they’ll get blown up. It’s not like they’re talking beat-up F-150s.

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      • Or maybe it’s because President Obama declared ‘this is what you do at the end of wars’ which may be a surprise to the 30K some-odd troops still in Afghanistan, not to mention the Afghans themselves. (Senator McCain’s repatriation only came after the Paris Peace accords)

        Uh, the Afghanistan war is over. We are not at war with Afghanistan any more, and probably should have returned their POWs years ago.

        In fact, we did that. We’re not holding Afghanistan soldiers anymore. Likewise, Afghanistan has returned any people they have captured already…this guy wasn’t being held by ‘Afghanistan’ (Which we are not at war with anyway.), he was being held by people claiming to be representatives of the rump previous government, or at least members of the same group.

        What we’re doing there now isn’t ‘waging war’. It’s maintain peace at the request of the Afghanistan government and training their people. It is entirely accurate to say the ‘war’ is over.

        Now, that doesn’t have a lot to do with this….this trade is essentially us trading someone who was kidnapped by the Taliban for people who were, uh, kidnapped by us. (Not quite sure what else you call holding people for years for no particular reason.) I’m not sure what sort of surreal moral standard we should hold our own kidnappings exchanges to.

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  4. It bears noting, also, that the Taliban themselves are not technically terrorists against America. They’re an antediluvian throwback passel of backward stone age misogynist monsters but they never have, themselves, attempted or shown much interest in attempting to commit terrorist attacks against Americans outside of Afghanistan (and when done within Afghanistan it’s more aptly described as guerilla warfare). Accordingly I would think that legally speaking we will have some sort of obligation to release or trade away all of the Taliban prisoners that we hold once we get out of Afghanistan.

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    • Not to mention the quasi, limbo-land of prisoners held in Guantanamo. Every prisoner we find a way to get out of that stinkhole of a violation of the Geneva Convention brings us closer to compliance with international law we’ve agreed to.

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    • the Taliban themselves are not technically terrorists against America

      The National Defense Authorization Act legally defined them as exactly that.

      For whatever that’s worth.

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  5. Burt,
    I respect your legal background but a lot of your article is total BS and smacks of “American exceptionalism”.

    1) No issue. Although some of our allies might take issue with this when we claim the same rights after a soldier rapes a Japanese girl on Okinawa.
    2) Note-personally I think the importance of a lot of the Gitmo guys has been grossly exaggerated, but I’m going on the public statements of the last few administrations and the words of the intelligence guys…
    One soldier is MORE important that 5 alleged “worst of the worst” terrorists? Ergo, our national security is of so little importance that these 5 guys, who we have been repeatedly told, are so bad that we can never allow them to get free, can be exchanged for one enlisted man? It seems like the hit to national security would be a body blow.
    Tactical and strategic decisions in “war” are made with the knowledge that soldiers will die or have to sacrifice a lot complete their orders. Than can mean “die in place” (google it), charging Omaha beach, or being abandoned on the field if a retreat is necessary to save more soldiers or civilians. Yes, we want him back, and in a perfect would, he would come home, but, to exchange 5 bad guys? The price is too high given how bad these dudes are claimed to be.
    3) Obama broke the law. You said it. Signing statements have no legal value. It’s “war time” doesn’t get me out of a speeding ticket for doing 70 in a 55 and it shouldn’t excuse any politician for disobeying the law when it’s clear what the obligation is. That it’s inconvenient isn’t the case. You let one politician get away with something, they all can.
    Blah blah BSDI. Doesn’t change the point at all.

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    • Burt addressed point 3: “but I personally can’t find it within myself to say that getting a U.S. soldier freed from enemy captivity is a ‘high crime or misdemeanor’ even if it was a violation of a Constitutionally-questionable law.” The analogy to doing 70 in a 55 zone doesn’t work.

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      • Ferguson
        “The analogy to doing 70 in a 55 zone doesn’t work.”

        Of course it applies. The law is the law and no one is above the law or should be free to consecquences of breaking the law. Or are you saying that some people are immune or above the law? The fundamental concept is that everyone is subject to the same laws.

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    • “… “worst of the worst” terrorists? ”

      I’ll give you a clue: ‘Worst of the worst’ should be filed alongside Saddam’s ‘vast stockpiles of WMD’s’.

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      • I agree. But that wasn’t my point. It smacks of hypocracy to say these guys are so bad they can never be let go, only to let them go when it’s convient or we get something we want. Someone lied, either then or now. Which is it?

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      • ,
        My guess is some lied then, and has been lying steadily since then to cover it up. Part of the problem is if we would put these guys on trial and lock them away as common criminals they’d cease to be martyrs, to say nothing of their use as recruiters (at least virtually). Hold them for years, torture them against US law, and they will emerge far more radical then they went in – and far more likely to be lionized on their return.

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    • Hi, everyone! I’m MA. Or Mike. Or the woman who works at Walmart. Or whoever. I’ve been banned many, many times from this site, so all of my comments except this one are going to disappear now. I’ll still be around for a little bit, though, asking “who’s MA?” and declaring that I’ve only just found this site today, but will still know all the names of the people who delete things behind the scenes.

      But don’t worry! I’ll be popping up from time to time with new sock puppet names. It’s what I do. I just can’t help myself.

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      • In my defense, I said “did the President release these five people out of Guantanamo without consulting Congress, or at least Congress’ designated leaders, first, as the law requires? Yeah, it sure looks that way.” That’s not a conclusive statement. It’s an indication that it appears to be a certain way, and an indication that someone else who has a contrary opinion should offer evidence and argument in support of it.

        Which is what you did, albeit in what by all appearances is a decidedly impolite manner. What amazes me is how license to post pseudonymously turns someone who otherwise has a good point and a valuable contribution to make into a raging asshole. And how doing so diminishes the persuasive force of whatever argument they might make.

        Compare:

        “Burt, you’ve not read the law closely enough. Go back and check this link, and I’m sure you’ll revise your opinion.”

        with

        “Burt, you’re an illiterate imbecile. No client should trust you to sign your own name, you’re such an idiot. Now, change your mind and agree with me, damnit!”

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  6. A note from behind the scenes deserves some public air: we may have had to have let these guys go very soon anyway. In between pointing out that yes, these are Really Bad Guys, the impressively-credentialed John Bellinger III points out:

    … [T]he U.S. would not be able to hold them forever. Indeed, it is likely that the U.S. would be required, as a matter of international law, to release them shortly after the end of 2014, when U.S. combat operations cease in Afghanistan. The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan.

    So they won’t be “hitting the battlefield” until after our combat operations are scheduled to cease anyway. Better to get something of value in exchange for them now, as opposed to later, and indeed this deal may keep them out of the arena for longer than not doing the deal would have.

    There are things that Congress can do, politically, to make its displeasure at the way the deal was reached known: it can issue a resolution of reprimand or censure, for instance. I am agnostic as to whether something like that ought to take place. But I’m anti-impeachment here, which isn’t really a legal opinion so much as it’s a political opinion.

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    • I’m surprised you can’t see the fundamental contradiction between (paraphrase) “The United States has to do something because of International Law” and “The President cannot be practically constrained in such and such manner because it’s a ‘political question'”

      “International Law” is wholly absent an enforcement mechanism, except as a political question. That’s why we can kill Bin Laden in a foreign jurisdiction, act as the Libyan Rebel Alliance Air Force, and probably send people to go after Kony and find those Nigerian schoolgirls – but don’t worry about doing anything to the perpetrators and overseers of the Tiananmen square incident or whatever the heck the Ukrainian armed forces have been doing lately. We *can* do a lot, or not, at the whims of pubbahs in charge, but we don’t *have* to do anything.

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      • If we have ratified a treaty, for instance the various Geneva Conventions, then that bit of “international law” is our law. Indeed, under our legal system, a ratified treaty trumps a regular statute in the event of a conflict between the two.

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      • “Under our legal system, a ratified treaty trumps a regular statute in the event of a conflict between the two.”

        Has that been formally adjudicated? I didn’t believe it had, yet. I thought the closest we came was the Tamayo case, but that decision would have (iirc) been based on whether or not *state* law can be overruled by international treaty.

        In any case, putting aside the fact that using treaties to create US civil and criminal law is literally the most undemocratic basis for law, it’s pretty easy to construct as case where a ratified treaty without supporting legislation would be plainly unconstitutional – a carbon tax.

        If the President signs and the Senate ratifies a international carbon tax regime, that would be a way of clearly sidestepping the Origination Clause. (unless the House went back and drafted and passed their own supporting legislation, which is then also passed by the Senate and signed by the President – or of course passed through the veto override process. I believe this is how treaties are actually incorporated into statute (insofar as they need to be, which for the most part they don’t)

        And anyway, even if all the above is incorrect, and treaties trump regular statute, who is going to be enforcing the law in this case? Who is going to be able to demand ‘close Guantanamo’ and get that demand translated into action. If the President in 2024 wants to keep it open (if it is still open) they will have sufficient authority and practical ability to do so, as no one is going to stop them. Certainly not the Roberts court. And that’s the only court (ultimately) US government agents with guns will listen to.

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      • I don’t think who is going to enforce the law is anything more than a pragmatic consideration when two laws conflict, so that the president has no choice between violating either the one or the other.

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      • Re: treaties, statutes, and supremacy. Of course, the “treaties trump statutes” is a shorthand of a more subtle and nuanced part of the law of conflict of laws, but for the most part, it’s correct and we are obliged to comply with our treaties to the maximum extent possible. Let’s start with Article VI of the Constitution providing, inter alia:

        This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Emphasis added.)

        So treaties are at least as binding law as are Federal statutes. Now, let’s consider how democratic it is to adopt treaties as domestic law, looking to Article II, section 2:

        [The President] shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…

        The House doesn’t get to participate in ratification at all. But, in order to ratify, we need a supermajority of the Senate. Now, it happens that the Senate is less democratic in nature than is the House, by explicit intent of the Framers (for better or for worse). But on the other hand, the Senate is under popular democratic control, particularly since 1913, so the flaw is that not all Senators represent equal numbers of constituents, somewhat exaggerating the importance and political power of low-population states. You can debate amongst yourselves whether a two-thirds majority sufficiently ameliorates this bit of counter-democratic sculpting in the architecture of the national government.

        Then, we get to primacy between treaties and statutes, which would only arise in the event of an actual conflict between them. We can go back to a case about the odious Chinese Exclusion Act, Chew Heong v. United States, 112 U.S. 536 (1884):

        Aside from the duty imposed by the constitution to respect treaty stipulations when they become the subject of judicial proceedings, the court cannot be unmindful of the fact that the honor of the government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and protected. And it would be wanting in proper respect for the intelligence and patriotism of a co-ordinate department of the government were it to doubt, for a moment, that these considerations were present in the minds of its members when the legislation in question was enacted.

        So the Court must interpret statutes to conform to treaties whenever and to the maximum extent logically possible. This leaves us with the much-criticized “later-in-time” rule (the only academic defense of the rationale for the rule I could find acknowledges this overwhelming criticism in its precis) which is when there is an irreconcilable difference between an earlier treaty and a subsequent act of congress, we get an exception to the treaties-govern-interpreting-statutes rule.

        The practical question of what Congress or the Courts are going to do about it when the President simply acts as he feels best regardless of laws or treaties is a different matter entirely, a football that SCOTUS has punted right back to Congress, e.g., Goldwater v. Carter, 444 U.S. 996 (1979). But as a matter of legal theory, treaties are the supreme law of the land, trumped only by the Constitution, and only subject to override by statute when Congress very obviously intends to break the terms of the treaty.

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      • all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

        Yeah, but that only applies to treaties written on parchment and delivered by horseback.

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  7. There’s something to that, which is why there may have been a breach of law that the courts ought not to involve themselves in, as it’s pretty clearly a “political question.”

    I am 100% down with breaches of law that the courts ought not to involve themselves in, I just wish they’d apply to the rich and powerful less often than they seem to end up doing.

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  8. Could he sign some statements to swap 5 more Taliban prisoners to free 100,000 prisoners we are holding in the war on drugs? Maybe just a few 100 folks that are being imprisoned for debt.

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  9. “Three questions, all of which have easy, obvious answers. So why are we talking about this?”

    The same reason we talk about Benghazi and birth certificates. Obama isn’t going to impeach himself.

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    • Watching McCain on this issue is painful.

      He’s not the only Republican flopping around on it, but you’d think given his personal history he’d be a bit less overtly political.

      Given the cleft the GOP appears to be in (on the one hand, troops = good and leaving a soldier behind = bad. In terms of PR optics, if nothing else. On the other hand, Obama = bad), it’s no surprise they’re throwing themselves through door number 3: “He’s a traitor and those are super bad guys and probably BENGHAZI!” in a frantic attempt to change the subject.

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  10. Generally, I am fine with mocking Republicans for politicizing something that a Republican president would have absolutely done. Whatever this guy’s ultimate fate, he ought to meet it here and not with the Taliban. The administration did the right thing. Of course, to fully excuse Obama, we basically have to admit that we stopped holding POTUS and a bunch of other agents of the government fully accountable to the law a long time ago (if we ever did).

    I do hope that politics doesn’t bleed to badly over into what happens next. As soon as this guy is in mental and physical shape, he ought to be standing tall before the man to answer for what he did.

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    • It seems there is a needle that can be threaded. Why can’t we say that, yes, Obama did the right thing in the grand scheme but the route he took was the wrong route and that there will be consequences for them? I don’t know what those consequences should be, but certainly there are reasonable options between “doing nothing” and “throwing him in jail”.

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      • Oliver North is throwing his hat into the ring. Maybe we can indict him for this, just for old time’s sake. :)

        I dunno, the details are too opaque to sort out. Did he inform Congress? From what McCain said, Congress knew talks were in the works in February. Did he inform them the deal had been made — apparently not. Was the deal time critical? Who knows.

        So, on the one hand — this is lesser than Iran Contra in that it appears Congress was aware of the talks and the general thrust of the negotiations (a POW exchange, effectively), so they weren’t fully out of the loop. (There’s also the fact that guns and drugs and hostages are a wee bit different than POW exchanges).

        On the other hand, it’s pretty obvious legal steps were skipped — the justification matters on that, though.If it was a true ‘take it or leave it now’ situation with no time to consult (kinda unlikely) then it probably falls under some executive exemption or other.

        That’s not even getting into the politics (would Congress have scuttled the deal just to stick it to Obama? Who knows).

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      • If there is a line somewhere that ends in a place where senior government officials are held to the both the spirit and the letter of the law without fail and where indiscretions are punished as opposed to reasoned away with claims of “well, what about when the other guy did that other thing,” point me in that direction. If it is a reasonable line, I may go and stand on it.

        Until then, however, I’ve resigned myself to the current state of affairs, which is deeply flawed but not quite so bad that I’m ready to go stand in front of a tank. And yes, I do realize the irony in that I am calling for the punishment of one soldier, who got a few people killed, while admitting that politicians who get hundreds and thousands killed will likely never face any real justice.

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      • : “That’s not even getting into the politics (would Congress have scuttled the deal just to stick it to Obama? Who knows).

        I see no other reason for Obama to circumvent Congress unless additional evidence is presented. The idea that the Taliban gave us a take-it-or-leave it exchange after holding this guy for years just makes no sense. Which means this whole operation is some very very bad precedent all-around:

        1) On camera, the opposition party makes passionate statements about the need to do “whatever it takes” to free the guy (McCain 02/24: “Now this idea is for an exchange of prisoners for our American fighting man. I would be inclined to support such a thing depending on a lot of the details.”; Ayotte last week: “I renew my call on the Defense Department to redouble its efforts to find Sergeant Bergdahl and return him safely to his family.”; etc.)
        2) Behind the scenes, the same people are working to scuttle any deal which would yield a resolution.
        3) The president acts unilaterally, against the direct will of Congress, and therefore against the law to get things working.
        4) The opposition threatens impeachment and legal proceedings, in direct contradiction to their earlier public statements.

        Basically, everyone involved is disingenuous and has stated interests that oppose their actual interests. That means we either let Congress scuttle every action that could in any way improve the president’s standing (bad). Or we let the president circumvent Congress whenever he feels that what’s good for the country is being scuttled (worse).

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      • trizzlor ,

        In general, I’m stating I don’t know why Obama did an end-run around Congress. There are a few legally plausible reasons, and many not legally plausible.

        I have no idea if he’s lying, if GOP senators are or — more likely — they both are.

        This issue DOES have precedent, of course — although I think due to various treaties and customary rules of war (such as they are), that POW exchanges are on firmer grounds than arms-for-hostages. (Which is, of course, the other recent precedent).

        I’d absolutely prefer to know the truth and be able to make a judgement on that. I suspect whatever trickles out will be, frankly, small potatoes made into mountains of perfidy, because that’s the way things have been working.

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  11. If found not guilty, he’s not guilty. Until then, he’s entitled by our laws to a presumption of innocence.

    Point is, as of this week, he is once again subject to our laws and not the whim of a Taliban faction.

    Btw, I think you’re being too cute with transitioning from legal fiction to practical power here. Under the premises of the first sentence, Bergdahl has *always* been subject to our laws, even when (especially when) in a DUSTWUN status.

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  12. “Damn right he should have. That’s how valuable an American soldier is.”

    This calculation is deeply skewed by the fact that there has only been one just long term (> 1 month) POW/MIA in the entirety of the Afghanistan conflict, (and only one or two long term ones in Iraq, one of which was also suspected of simply walking off his post)

    This is what the economists would call a ‘highly illiquid market’. it’s probably a decent enough deal as it’s the only one that currently needs to made. But if we were dealing with dozens or hundreds of POWs, it’s pretty clear we wouldn’t have been able to make, nor would have made just a deal. (because we didn’t back then).

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      • The technical term is (based on the link above and memory) ‘Duty Status: Missing – Captured’ but the schema is more a matter of payroll functions than any requirement legal standing.

        Any missing service member will invoke a contingency that involves a sizable effort towards recovery – Bergdahl’s was at the Brigade/ Task Force level, which then diminishes over time as the trail grows cold – much like any high profile missing persons case

        Of course, the oolie in the Iraq/Afghanistan cases (except for the earliest days in Iraq e.g. Jessica Lynch), besides their extreme rarity, is that the service members are not held by a formal government force. So it’s difficult in even figuring out who one should and/or can talk to if one even wishes to start negotiations for what in past wars were ‘routine’ POW swaps.

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      • Makes some sense, I guess. I mean, at the end of the day, there is not a whole lot of difference between a POW and a soldier with “Duty Status: Missing – Captured”, but if you went out of your way to avoid declaring war, it makes sense that you’d come up with all sorts of circumlocutions for other terms that you want to go out of your way to avoid.

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      • “it makes sense that you’d come up with all sorts of circumlocutions for other terms that you want to go out of your way to avoid.”

        It not really any sort of newspeak conspiracy, though, it’s because in the present war (and recently past war), there’s a great deal of doubt on that actual status. There’s always been days, and sometimes even months or years of delay between the first report that people that have gone missing (either due to air transport crashes or not returning from a ground patrol or other circumstances) and then either recovery of their remains, or some sort of proof of life from whomever captured them (which in turn has frequently been not timely and/or reliable)

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    • If we were to be in the very unfortunate position of having more contemporary data points, perhaps the calculus would change. Respectfully to all commenters offering me pushback, I’ve not been persuaded yet to abandon or modify my claim that 1 US soldier, even a flawed one > 5 Taliban shitheads.

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      • Obviously if the numbers were different…there’d have been a different deal. Complaining this deal wouldn’t have been sustainable if the numbers were far different is kind of pointless, I agree.

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      • Was that to me or Burt?

        Because if it was to me: There’s a difference between ‘analyzing’ and ‘whining’.

        See, sure — 5 to 1 wouldn’t work if we had a 3 to 1 ratio. And we could talk all day about what WOULD be a good deal in any hypothetical situation.

        But saying “This deal is crappy because if the numbers were different it wouldn’t work” is pointless, because arguing whether this ACTUAL deal is good or bad depends on the circumstances of the actual deal, not whether this deal would be good or bad in some other universe with different numbers.

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      • Is there any conceivable scenario where Obama could have made a bad deal? If he would have let 10 Gitmo dudes go to Qatar? 20, and directly to Kandahar? All of them with a stop in Palm Springs for a spa treatment?

        I get that everyone 1) wants to close Gitmo 2) get the heck out of Afghanistan. (I’m fine with the former, and wholly endorse the latter) Given those premises, there is indeed no deal that this Administration would have made that wouldn’t have been ‘good’ as it either furthers or doesn’t hinder either of those ends.

        But what if those premises are flawed? This Administration doesn’t believe in (2), and while it has always advocated (1), it has, through word and deed, bought into the whole War on Terror.

        Can’t we say that this might have been a bad deal given the Administration’s own policies or goals? Or since Obama is now The Decider, we know that it’s alway a good Decision?

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      • Is there any circumstance in which a bad deal could have been made? Terms of deal that would look obviously bad against us? Sure. This deal isn’t it. The return of one of our own to us is valuable consideration indeed, unless and until it comes to light that there are other terms of the deal, other consideration granted to the other side, that we don’t know about just yet.

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      • Sure, plenty. He could have handed over nuclear weapons, for instance.

        What’s that got to do with the price of tea in China? The question is whether THIS deal with THESE facts is good or not.

        There’s an infinite number of other possible circumstances and an infinite number of possible deals, so why exactly are we exploring that solution space when the question is THIS deal and THIS situation?

        By all means, explain how THIS deal in THIS situation is bad. That’s what this thread is for. But Burt’s post was he thought THIS deal was a solid one — 5 for 1 seemed acceptable here and now, and that’s what I responded to.

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      • Personally, I’m totally on-board with convincing people with whom you’re engaging in war to take prisoners, rather than beheading any wounded after an engagement.

        If we drag Al Qaeda, and other terrorist organizations, into the Geneva Accords guidelines for prisoner treatment by engaging in prisoner swaps, I’ll take that as a win.

        Maybe that’s just me.

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      • And when it comes to hostage takers, “if rewarded with concessions leads to more hostage taking.”

        POW and “hostage” are not synonymous, but you are using them interchangeably without bothering to differentiate — or even make a case as to which is which.

        Where we holding hostages at Gitmo?

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  13. “It’s wartime…”

    When is it not?

    I think a lot of the conversation around this case exemplifies what I find so maddening about moralizing war.

    As Burt concludes, “We brought our boy home. That’s what matters.” But what if the Taliban/Al Quaeda/whomever decided to bring their boys home? Would that be all that mattered? If they were to attack Guantanamo or other American interests in order to secure the freedom of “their boys”, would we have to say, “Well, they’re trying to bring their boys home. That’s all that matters”?

    Or is the fact that they are “bad” guys, as Burt put it, enough to make a difference? I’m starting to think it might be, given how many people were content to let Bergdahl stay where he was once they concluded he was a bad guy.

    tl;dr: It seems an increasingly large group of people think it okay to do bad things to bad people so long as they get to decide who is bad and who isn’t.

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    • From our perspective, someone attacking our military facilities at Guantanamo Bay is, by definition, the enemy, regardless of their proffered reason for so doing. Does that deny them equal dignity with the United States government? Yep, and I’m fine with that.

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      • Does enemy = bad?

        By definition, yes. One might have a “rival,” an “adversary,” a “counterpart,” or a “competitor.” But the Taliban are the enemy. The Taliban has a political command structure and dudes with guns who follow orders given by that command structure, and thus those dudes with guns point and shoot those guns at our soldiers while acting under the instructions of their political command structure. That makes them the enemy, at minimum until the pointing and shooting stop.

        N.b., that is also not the only possible definition of an enemy. But it suffices here.

        You seem to be searching for some sort of objective, principled way by which I identify the United States as morally superior as if I were a disinterested third party. I am not a disinterested third party here, and I do not purport to be.

        Thoroughly baked in to my post is an assumption that the United States is (for the most part) a morally worthy nation and that the Taliban are not (for the most part) similarly morally worthy. As a separate issue, Congress has declared that they are the enemy, in the AUMF of 2001, as modified and made applicable today.

        Further, much of what I write in the post is based on an effectiveness and practicality calculus, and not upon an abstractly-derived and principled moral calculus. Identification of the “enemy” can be thoroughly arbitrary in such a calculus.

        There is also a degree of arbitrary preference baked in to the fact that I like the idea of American soldiers coming home from a war to rejoin their families, and a degree of familiarity and affinity are no doubt at the root of that preference as it is easier for me to identify with an American soldier than, say, a Talib.

        So yes, the assignment of the label “enemy” to a military rival is to a large degree arbitrary and the result of an unprincipled political process. Our political leaders have identified the Taliban as an enemy, and so they are. War can be like that sometimes.

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      • Please allow me to apologize. First and foremost, much of what I am responding to here is based on a broader zeitgeist and not what you’ve written. I should have been clearer in that regard. I have little beef with what you wrote here — and I recognize the perspective from which you are coming — and was instead using it to springboard elsewhere. Again, I should have been clearer.

        Also, I do not object to your classification of the Taliban as our enemy. What I’m trying to figure out is whether them being our enemy necessarily means they are “bad”. Because that definition you used of “enemy” could very well be applied by them to us, at which point they would similarly declare us “bad” and all of their actions justified accordingly.

        That said, I’m also not a moral relativist. I recognize that some people — and some groups of people — are worse than others. I just think we need to make sure we are properly assessing for that and not just assuming it is the case.

        The extent to which I do disagree with you hear is that “bringing home our boy” is “all that matters”. I think a lot more than that matters. If we’re looking at a micro level, sure, we could probably saying the safe return of an American soldier should have been our number one priority and quite high above all else. But when we zoom out, I think other things matter. For instance, (and you discuss this) I find it highly problematic that we act as if the holding of an American solider, captured on foreign soil (that is to say the presumed home soil of his captors), is an immoral act that justifies any and all means when, ohbytheway, we’re holding multitudes of enemies, many captured on their own home soil, and many among us claim it to be morally justified.

        Again, you are not making that claim. In fact, you state the otherwise. So I guess my challenge is to those who would generally champion a “Bringing home our boy is all that matters attitude” and simultaneously justify the ongoing detaining of our enemies at Guantanamo. That isn’t an unsquareable circle, but it surely takes more effort than I see most people give.

        Also worth noting is that many people who might typically hold those two positions are staking out different territory in this particular case because of the politics involved.

        tl;dr I might be tilting at straw men a bit and at the very best was aiming my comments at people other than Burt.

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    • tl;dr: It seems an increasingly large group of people think it okay to do bad things to bad people so long as they get to decide who is bad and who isn’t.

      If that number is increasing, it is only because the population of the earth is increasing.

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    • I wrote this post. I recall writing it all by myself last night, rather clearly. Jason did not write it, did not collaborate with me on it, did not edit it, and I do not know if he agrees with any or all of what I wrote as he has yet to opine on the post’s contents, should he elect to do so at all.

      And so what if Jason had written it instead of me? Agree with the post, or disagree with it, in whole or in part, as seems right to you, on the merits of the argument presented.

      I’m troubled by this comment from another perspective, too. As to what seems to be a jab at a specific person, please consider this a caution, .

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      • Burt,
        I know you wrote this post.
        I am saying that Jason should part ways with you, Burt.
        I respect Jason a great deal.
        I have problems with you, especially after that B.S. Stephen Glass post.
        Members of your Cartel are free to commit actual crimes as long as they are already in the club: California Bar Journal.

        One of your fellow club members:
        “In some cases there were direct fraudulent checks drawn on accounts using forged signatures. In other instances Pulido had Burke sign checks from her client trust account, which Pulido did not have signature authority for, over to her business account, claiming that they were reimbursement for client expenses paid from the business account.”

        The punishment for your fellow illustrious member of The Bar:
        “suspended for one year, stayed, placed on three years’ probation with an actual 60-day suspension and ordered to take the MPRE and pay restitution.”

        Burt,
        I really wasn’t complaining about your post.
        This whole comment thread. Damn!!!!!

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        • Thanks for your response, .

          I’m more of a critic than a supporter of the Guild; the Guild is a necessary evil at best. Guild discipline is not the same thing as criminal discipline, and to the extent that attorneys do escape the heavy hand of justice for actual crimes they commit, I suggest you look to factors such as racial and economic privilege at play rather than Guild membership in particular. I very much do not condone attorneys stealing from their clients, as you may recall from the Stephen Glass post with which you took issue, and the attorney whose discipline report you reference did not steal from her clients herself, but rather was guilty of inadequately supervising an employee who stole from her clients and then tried to make restitution from her personal funds for what her employee had done. You are free, of course, to argue that the discipline the Guild imposed on her was unjustly light.

          None of which has anything to do with the subject of the post, which addresses a much more political than legal matter and certainly has nothing to do with attorneys who behave badly.

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      • Actually, she was suspended for two years. And she wasn’t even the one who committed the actual crime – her accountant robbed her trust account blind and lied to her about what money was supposed to get transferred to the business account from the trust account. She didn’t commit any crimes; instead, she fell for a fraud perpetrated by her accountant against her clients (and even some people who weren’t clients). She then attempted to make the victims of her accountant’s fraud whole.

        Nonetheless, for being gullible and overly trusting of her accountant, she was suspended for two years. And rightly so. But having your license to practice law revoked entirely because you fell for a fraud rather than for being dishonest yourself…..that seems rather excessive, no?

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      • Thompson,
        You are correct and I apologize for confusing two cases.
        However,

        Wong stipulated that he commingled personal and client funds in his client trust account and used the account to pay American Express, PG&E and other personal bills. He also failed to respond to four letters from a State Bar investigator.
        In mitigation, he had no prior discipline record.

        WARD [#49156], 78, of Culver City was suspended for one year, stayed, placed on three years of probation and was ordered to take the MPRE within one year. The order took effect June 18, 2011.
        Ward stipulated to two counts of misconduct in two matters. In the first, he misused his client trust account by commingling funds, paying for personal expenses from the account and failing to properly maintain his client funds. He admitted he misappropriated $3,000 of client money, committing an act of moral turpitude.
        In the second matter, after representing three clients in one matter, he then represented two of the three when they sued the third for libel and slander. Ward did not obtain the defendant’s written consent and in fact the individual strenuously objected to Ward’s representation of his former co-plaintiffs. Ward had obtained confidential information material about his former client.
        Ward was disciplined in 1992 and 1993, but the nature of the misconduct was not available.
        In mitigation, he cooperated with the bar’s investigation, had physical problems that resulted in his hospitalization and he made restitution in the client trust account matter.

        The list goes on and on – in every State.
        My point is that the requirements for staying in the club seem to be much less stringent than for joining the club.

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      • I would wager that in a given year, there are significantly more disbarments then there are people who are denied admission for character concerns. But beyond that, once someone has a license, yes, it’s hard to take it away from them, just as it is difficult for government to take any form of property away from someone – there needs to be due process, etc.

        And while commingling of funds is unacceptable for a lawyer, it’s worth mention that for other small businesses, it’s a commonplace – the very concept of a required trust fund is relatively unique to the legal profession. If a plumber or electrician or HVAC installer deposited a down payment in their personal account before doing the work, no one would care, and there certainly wouldn’t be a demand that they lose their licenses. And if they spent the money and went bankrupt before doing any of the work, they would not see their license suspended, and unless it could be shown that they never intended to do the work, wouldn’t even be liable for anything more than breach of contract.

        My point being that commingling of funds is a big problem, and it is indeed deservedly a guaranteed way to get a lawyer’s license suspended, but it’s not the same thing as theft or fraud, especially if the fund gets reimbursed. If it doesn’t get reimbursed or if the commingling is particularly egregious or if there is a history of other ethics problems, though, it is actually a very common basis for disbarment.

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    • If “damn” is the best you can do as a critique of the comment thread (and some other lawyers the best you can do as a critique of Burt), I assume that Jason’s smart enough to know precisely what to do with your advice.

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      • Chris,
        Jason will probably disregard my opinion, as he should, because who am I?
        However,
        Some kid published some lies almost twenty years ago.
        A lawyer misappropriated funds from a client.

        The kid will never practice while the lawyer will pay a fine with a 60 day suspension. I am sure Burt is a very nice guy, he just doesn’t seem to know what his fellow bar members get away with.
        Also, it is not one lawyer. Click the link provided – the list goes on and on.

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      • One of the things that the internet reminds me, every once in a while, is that there are people with personal crusades, sometimes large, sometimes not so large, who can’t think about everything else, so much that pretty much any conversation results in them talking about their crusade rather than anything that was being discussed by anyone else. Good luck with your crusade.

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  14. Show me the grounds on which you make judgments about whether certain violations of the positive law are better or worse than others, and you would have been led back to the ground of what I understand as the natural law.

    Based on the same kind of natural law reasoning in your post, I agree that the talk about Bergdahl’s alleged misconduct has nothing to do with whether the swap was justified, and that the President’s violation of the law in foreign affairs is less problematic than his violation of the law in domestic affairs.

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    • I wonder, as CinC, how far the President’s remit actually goes when dealing with POW’s — or even defining them. Obviously not unlimited (if nothing else, he’s treaty bound) but you’d think pretty darn far in some cases.

      Pity so many law blogs have fallen down the crazy hole, that’d be an interesting post or three.

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    • I don’t understand, . One must somehow unconsciously subscribe to natural law theory because one sees gradations of either moral gravity or legal significance in a variety of acts? That doesn’t seem right to me.

      One’s ability to perceive differing shades of moral gray indicates that one’s moral compass is functional; one’s ability to perceive different amounts of legal significance indicates an understanding of the legal system as a whole. Positivism, or legal realism, do not preclude an understanding of the concept of “justice.”

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      • To the extent justice is an objective concept and also something different from merely what is written down or what those in power do, then it is to engage in what I take to be natural law. Put otherwise, to say that an act is just though contrary to law suggests an appeal to extra-legal authority.

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      • Hmm. I’m not sure I’m calling the bypassing of the law requiring notification to Congress here “just” and if I am, maybe that’s something I ought to walk back. Certainly I didn’t explicitly assign the concept of justice with respect to it but maybe that could be inferred.

        Or maybe I shouldn’t walk it back. The result is a net good, so at least on a utilitarian level I’m calling it “good.” So can a good deed nevertheless be unjust? Perhaps not, perhaps so, and that’s a much more abstract question than I wish to address in the intensely practical and political context of this event.

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  15. I agree with almost everything in the OP. But this disturbs me, even though I realize it doesn’t represent the sum total of what this OP is about:

    Besides, our kill ratio against the Taliban is higher than 5:1. We’re better-armed, better-intelligenced, better-supplied, better-trained, better-supported than they. So in the coldest and most bloodless of military terms, one U.S. soldier is worth more than 5 Taliban.

    When we talk about “kill ratios” and one person being worth more than another, or five others, or more than five others, I get nervous. Not that I don’t think it’s a good trade, and as long as we’re talking prisoner exchanges, I guess the “worth more than” language is appropriate. But I do keep coming back to the “they’re the enemy” and “kill ratio” aspects of all this, even though, as you point out (and rightly condemn), they haven’t been publicly tried nor given the status of POW.

    Maybe my discomfort is just the discomfort born of a combination of the following: 1) living in a country that is at war (while not being officially at war); 2) not serving in that war; and 3) not having been and not being likely to be the target of Taliban brutality. To be clear, I am an American, and sometimes that means “taking care of our own.” I just find it hard to consider “worth” intermingled with “kill ratios.” In this sense, I’m not arguing against anything you say. Just saying it makes me uncomfortable.

    But I want to repeat, I find your OP as a whole very satisfying, and I agree with almost all of it.

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  16. A failure to have taken advantage of an opportunity to get a solider back would seriously harm military morale.

    I don’t think this has any relevance.

    That’s how valuable an American soldier is.

    Any particular American soldier has very little value in the grand scheme of the American armed forces. He was easily expendable.

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    • Only in a pure numbers sense.

      In terms of the entire military, of morale and basically the grand bargain between troops and their political leaders, not so much.

      You don’t leave people behind.

      As noted, that’s why we’re still digging up bones in Vietnam to try to identify and send home.

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  17. Obama did not break the law. Burt Likko sucks at reading.

    Section 1033(d) of the NDAA 2014 revisions. Obviously getting Bergdahl back WAS in the national security interest of the country.

    (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.

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      • I didn’t change anything but the potentially offensive name, which was a clear violation of the blog’s comment policy. But thanks for confirming that you are a horrible human being by accusing me of changing other stuff.

        I see you have 2 more identical comments in moderation. Anyone who wants to determine whether I changed anything but the name you used (which used licking a part of the body, misspelled to mock Burt’s nom de blog), can look at those.

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      • No, Chris is telling the truth. I read your comment before he changed the name, and there was no more. Each of the the two comments sitting in moderation ends at exactly the same point. If several paragraphs got lost, it wasn’t Chris’s doing (he’s not the type anyway).

        You should feel free to repost the rest of your argument, although truthfully your point still comes through clearly, and it’s a good point. There was no gain in adding the insults, though. It diminished the likelihood of people recognizing your admittedly good point.

        If you post the rest of your argument, being straightforward but forgoing the need to name-call, I think it could be well-received. That’s just the nature of this particular blog. It’s a bit different than a lot of places on the internet. (Trust me, I’ve gotten on the wrong side of the fence here a time or two myself, to my own disadvantage.)

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      • Who knows? MA used sock puppet emails to avoid easy detection. You’d have to backcheck the IP address. The comment does read like MA, though.

        If the next response targets me and uses either “FYIGM” or “I have a small penis,” we’ll know.

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      • This little blowup is a sterling example of how a good intellectual point can get completely lost in an overly acerbic presentation.

        ?M?y ?A? dvice to the poorly-anonymized commenter is to stay on your meds. It really doesn’t matter all that much if someone is wrong on the internet.

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  18. MA, do you have some sort of Outlook reminder that tells you “Go say some stuff at OT and then accuse them of lying and altering your comments” every 3 months?

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