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The Legality of the Bowe Bergdahl Prisoner Swap
COMMENT Leave No Soldier Behind? The Legality of the Bowe Bergdahl Prisoner Swap STEVEN M. MAFFUCCI† INTRODUCTION On May 31, 2014, President Obama announced the recovery of the lone American prisoner of war from the Afghan conflict, U.S. Army Sergeant Bowe Bergdahl.1 This seemingly momentous occasion, however, was quickly shrouded in controversy.2 Most notably, there were assertions from members of Bergdahl’s unit that he had deserted, and that fellow soldiers had needlessly died in the search following Bergdahl’s disappearance.3 There were complaints that the cost associated with recovering Bergdahl, particularly the five Taliban prisoners for whom Bergdahl was exchanged, was too high, and that the Obama † J.D. Candidate, Class of 2016, SUNY Buffalo Law School. Thanks to the dedicated associates and editors of the Buffalo Law Review for their insightful suggestions and support. 1. Eric Schmitt & Charlie Savage, Bowe Bergdahl, American Soldier, Freed by Taliban in Prisoner Trade, N.Y. TIMES (May 31, 2014), http://www.nytimes. com/2014/06/01/us/bowe-bergdahl-american-soldier-is-freed-by-taliban. html?_r=0. 2. Tom Hamburger & Kevin Sieff, Joy About Bergdahl Release Gives Way to Questions, WASH. POST (June 1, 2014), https://www.washingtonpost.com/world/ national-security/hagel-discusses-details-of-us-operation-to-exchange-taliban- detainees-for-captive-soldier/2014/06/01/551c21f8-e95f-11e3-a86b- 362fd5443d19_story.html. 3. Eric Schmitt et al., Bowe Bergdahl’s Vanishing Before Capture Angered His Unit, N.Y. TIMES (June 2, 2014), http://www.nytimes.com/2014/06/03/us/us- soldier-srgt-bowe-bergdahl-of-idaho-pow-vanished-angered-his-unit.html?_r=0. -
CAAF Bergdahl Writ Appeal Petition
IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES ROBERT B. BERGDAHL ) WRIT-APPEAL PETITION FOR Sergeant, U.S. Army, ) REVIEW OF U.S. ARMY COURT OF ) CRIMINAL APPEALS DECISION ON Appellant, ) PETITION FOR WRIT OF MANDAMUS ) v. ) ) PETER Q. BURKE ) Lieutenant Colonel, AG ) U. S. Army, ) in his official capacity as ) Commander, Special Troops ) Battalion, U. S. Army Forces ) Crim. App. Misc. Dkt. No. Command, Fort Bragg, NC, and ) ARMY 20150624 Special Court-Martial ) Convening Authority, ) USCA Misc. Dkt. No. ) and ) ) UNITED STATES, ) ) Appellees. ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: Index Table of Authorities .......................................... ii I. Preamble and Request for Recusal ............................ 1 II. History of the Case ........................................ 3 III. Reasons Relief Not Sought Below [Inapplicable] ............ 6 IV. Relief Sought .............................................. 6 V. Issue Presented ............................................. 6 ONCE AN UNCLASSIFIED DOCUMENT HAS BEEN ACCEPTED IN EV- IDENCE IN A PRELIMINARY HEARING THAT IS OPEN TO THE PUBLIC, MAY THE CONVENING AUTHORITY REFUSE TO RELEASE IT OR PERMIT THE ACCUSED TO DO SO? VI. Statement of Facts ......................................... 6 VII. Reasons Why Writ Should Issue ............................. 6 A. Jurisdiction ............................................. 6 B. Error ................................................... 13 C. Prudential Considerations .............................. -
Political Report
A M ONTHLYPolitical P OLL C O mp IL A TION Report Volume 10, Issue 6 • June 2014 Evaluating Vice Presidents Americans have never held the office of vice president in high regard, as the quotes below show. Many people cannot cor- rectly identify vice presidents when they are serving, and this is not a new phenomenon. In 2010, around six in ten Amer- icans were able to come up with Joe Biden’s name in response to a question from the Pew Research Center. As the data on the next pages show, a vice president’s favorability ratings have usually moved in tandem with the president’s ratings in recent years, but the vice president’s ratings are usually lower. The most insignificant office that ever the invention of man contrived or his imagination conceived. —John Adams Not worth a bucket of warm spit. —John Nance Gardner I do not propose to be buried until I am dead. —Daniel Webster of being asked to be Zachary Taylor’s running mate Q: Will you tell me who the Vice President of the United States is? (1952, Gallup) Q: Who is the Vice President of the United States? (1978, National Opinion Research Center) Q: Can you tell me the name of the current Vice President of the United States? (1995, Kaiser/Harvard/Washington Post). Q: Will you tell me who the Vice President of the United States is? (2001, 2002, 2007, 2010 – question wording varied slightly, Pew Research Center) 1952 1978 Alben Barkley 69% Walter Mondale 79% 1995 Al Gore 60% Dick Cheney 2001 67% 2002 61 2007 69 2010 Joe Biden 59% v AEI POLITICAL REPORT CONTRIBUTORS Karlyn Bowman, Senior Fellow; Editors: Jennifer Marsico, Senior Research Norman Ornstein, Resident Scholar; Associate; Heather Sims, Research Assistant. -
Afghanistan: Post-Taliban Governance, Security, and U.S
Afghanistan: Post-Taliban Governance, Security, and U.S. Policy (name redacted) Specialist in Middle Eastern Affairs January 12, 2017 Congressional Research Service 7-.... www.crs.gov RL30588 Afghanistan: Post-Taliban Governance, Security, and U.S. Policy Summary The United States, partner countries, and the Afghan government are attempting to reverse recent gains made by the resilient Taliban-led insurgency since the December 2014 transition to a smaller international mission consisting primarily of training and advising the Afghanistan National Defense and Security Forces (ANDSF). The Afghan government has come under increasing domestic criticism not only for failing to prevent insurgent gains but also for its internal divisions. In September 2014, the United States brokered a compromise to address a dispute over the 2014 presidential election, but a September 2016 deadline was not met for enacting election reforms and deciding whether the Chief Executive Officer (CEO) position might be elevated to a prime ministership in a restructured government. The progress of the Afghan government in reducing corruption and implementing its budgetary and other commitments was assessed by an international meeting on Afghanistan during October 4-5, in Brussels, as sufficient to merit continued international assistance. And, in late 2016, the government adopted the requisite measures to, at the very least, move forward with new parliamentary elections. The number of U.S. forces in Afghanistan, which peaked at about 100,000 in 2011, is about 9,800, of which most are assigned to the 13,000-person NATO-led “Resolute Support Mission” that trains, assists, and advises the ANDSF. About 2,000 of the U.S. -
Motion to Dismiss ) V
IN A GENERAL COURT-MARTIAL SECOND JUDICIAL CIRCUIT, U.S. ARMY TRIAL JUDICIARY FORT BRAGG, NORTH CAROLINA UNITED STATES ) Motion to Dismiss ) v. ) ) SGT Robert B. Bergdahl ) HHC, Special Troops Battalion ) U.S. Army Forces Command ) Fort Bragg, North Carolina 28310 ) 20 January 2017 TABLE OF CONTENTS Relief Sought ................................................................................................................... 2 Burden of Persuasion and Burden of Proof ..................................................................... 2 Facts ............................................................................................................................... 3 Witnesses and Evidence ................................................................................................. 7 Legal Authority ................................................................................................................ 8 Question Presented......................................................................................................... 9 IS DISMISSAL REQUIRED WHERE A SUCCESSFUL PRESIDENTIAL CANDIDATE HAS, AS A PROMINENT ELEMENT OF HIS CAMPAIGN, REPEATEDLY AND VERY PUBLICLY CALLED A SOLDIER A TRAITOR WHO SHOULD BE EXECUTED AND MADE OTHER FALSE AND HIGHLY PREJUDICIAL STATEMENTS ABOUT THE SOLDIER’S CASE? Argument ......................................................................................................................... 9 I. President Trump’s statements are prejudicial to Sergeant Bergdahl’s right to a fair trial and -
Sfats: Working Themselves out of a Job Army Bands
SFATs: Working Army Bands: Army Takes Home 43 Themselves Out of a Job Rocking Into the Future Medals at Warrior Games PAGE 22 PAGE 30 PAGE 48 VOL. 21, NO. 6 · JUNE 2012 FEMALE ENGAGEMENT TEAMS PAGE 14 The Official Magazine of NCO Professional Development VOLUME 21, NUMBER 6 Editorial Staff DIRECTOR & NCOIC Master Sgt. Antony M.C. Joseph EDITOR David Crozier CONTENTS WRITERS / EDITORS Staff Sgt. Jason Stadel Michael L. Lewis Clifford Kyle Jones Jonathan (Jay) Koester Christy Lattimore-Staple Jennifer Mattson PHOTOGRapHY & GRapHICS Sgt. Russel C. Schnaare Spc. Ashley Arnett Published monthly at the June 2012 United States Army Sergeants Major FeaTURES Academy 14 Behind the veil Editorial Board Female engagement teams interact with local women to bring stability to COMManDanT, USASMA combat troops and local communities. BY JENNIFER MATTSON Command Sgt. Maj. Rory L. Malloy 22 Working themselves out of a job DepuTY COMManDanT Command Sgt. Maj. Wesley Weygandt Security Force Assistance Teams embed with Afghan soldiers and police to advise and assist with setting up security. BY DAVID CroZier CHIEF OF STAFF Stephen L. Chase 30 Marching Rocking into the future DIRECTOR PERSOnneL & ADMIN. NCOs of Army Bands are adapting to remain relevant. BY JONATHAN (JAY) KOESTER Jesse McKinney 36 Old uniforms, modern mission The NCO Journal (ISSN 1058-9058) is published monthly by the U.S. Army The Fife & Drum Corps is among the most visible Army units. BY MICHAEL L. LEWIS Sergeants Major Academy to provide a forum for the open exchange of ideas DepaRTMenTS and information pertinent to the Noncommis- sioned Officer Corps; to support training, educa- tion and development of the NCO Corps; and to 3 From the CSM foster a closer bond among its members. -
Military Appellate Court: Presidential Comments Can Amount to Unlawful Command Influence
Legal Sidebari Military Appellate Court: Presidential Comments Can Amount to Unlawful Command Influence November 2, 2020 In a set of divided opinions on August 27, the U.S Court of Appeals for the Armed Forces (CAAF) rejected Sergeant Robert “Bowe” Bergdahl’s appeal in his desertion case, which he argued was invalid due to unlawful command influence. However, CAAF found that the President’s remarks about an ongoing court-martial trial can amount to unlawful command influence in violation of Art. 37 of the Uniform Code of Military Justice (UCMJ). The court reasoned that the President is by statute a convening authority for general courts-martial and is therefore subject to the Rules for Courts-Martial (R.C.M.) Rule 104(a)’s prohibition on unlawful command influence, which implements Art. 37 of the UCMJ. The court also held that the late Senator John McCain’s actions as Chair of the Senate Armed Forces Committee regarding a pending court-martial could have violated Art. 37 of the UCMJ because Senator McCain, as a retired member of the Armed Forces, was a person subject to the UCMJ. However, under the facts of the case, a CAAF majority held there was no apparent unlawful command influence, affirming the lower court’s determination that appellant Bergdahl was not entitled to relief. This Legal Sidebar explains the prohibition against unlawful command influence in military courts, describes the tests CAAF uses to decide whether unlawful command influence has occurred, and explains CAAF’s decision in the Bergdahl appeal. For more information about military courts-martial, see this CRS Report. -
Fact Sheet April 25, 2012
FACT SHEET April 25, 2012 RELEASING TALIBAN DETAINEE FROM GUANTANAMO NOT WORTH THE RISK On Tuesday Reuters reported that the Obama administration is considering the release of Mullah Khairullah Khairkhwa from detention at Guantanamo Bay, where he has been held since 2002. U.S. military assessments characterize Khairkhwa as a “high-risk” detainee and a ”direct” associate of the late al-Qaeda leader Osama bin Laden and Taliban leader Mullah Omar, even though he was more of an administrator rather than a military leader under the Taliban’s ruling body. The administration has argued that his release is a good-faith gesture that will build trust between the Taliban and the U.S., ideally leading to a political settlement to end the war. In March the Obama Administration’s plan to jump-start peace talks with the Taliban involved the proposed transfer of five Taliban detainees to Qatar where they would be held by the Qatari authorities. U.S. efforts to broker the talks were dealt a blow last month when the Taliban suspended its participation and appeared to reject even minimal restrictions for prisoners transferred to Qatar. Now, according to Reuters, the administration is considering sending Khairkhwa directly to Afghanistan. Although this will surely please the Taliban, it is unlikely to kick off peace talks. There is still a considerable gap between the U.S. and the Taliban on the issues of breaking with al-Qaeda, accepting the Afghan constitution and laying down their arms. The release of Khairkhwa will do nothing to narrow this gap. WHO IS MULLAH KHAIRKHWA? Under the Taliban, Khairkhwa served as an official in a variety of capacities, including the regime’s chief spokesman and minister of Interior. -
Military: Bergdahl May Face Life in Prison If Convicted by ALLEN G
Associated Press ~ March 25, 2015 Military: Bergdahl may face life in prison if convicted By ALLEN G. BREED and LOLITA C. BALDOR, Associated Press FORT BRAGG, N.C. (AP) — Army Sgt. Bowe Bergdahl, who abandoned his post in Afghanistan and was held captive by the Taliban, was charged Wednesday by the U.S. military with desertion and misbehavior before the enemy and could get life in prison if convicted. Misbehavior before the enemy, which carries a maximum sentence of up to life in prison. Desertion carries a maximum of five years. Bergdahl could also face a dishonorable discharge, reduction in rank and forfeiture of all his pay if convicted. The case now goes to an Article 32 hearing to be held at Fort Sam Houston in San Antonio, where Bergdahl has been performing administrative duties as he awaits the conclusion of the case. That proceeding is similar to a grand jury. From there, it could be referred to a court-martial and go to trial. A date for that hearing was not announced. The charges are the latest development in a long and bitter debate over Bergdahl's case. They also underscore the military and political ramifications of his decision on June 30, 2009, to leave his post after expressing misgivings about the U.S. military's role, as well as his own, in the Afghanistan war. After leaving his post, Bergdahl was captured by the Taliban and held by members of the Haqqani network, an insurgent group tied to the Taliban that operates both in Pakistan and Afghanistan. Last May 31, Bergdahl was handed over to U.S. -
Qatar: Background and U.S
Qatar: Background and U.S. Relations Christopher M. Blanchard Specialist in Middle Eastern Affairs November 4, 2014 Congressional Research Service 7-5700 www.crs.gov RL31718 Qatar: Background and U.S. Relations Summary Qatar, a small peninsular country in the Persian Gulf, emerged as a partner of the United States in the mid-1990s and currently serves as host to major U.S. military facilities. Qatar holds the third- largest proven natural gas reserves in the world, and is the largest exporter of liquefied natural gas. Its small citizenry enjoys the world’s highest per capita income. Since the mid-1990s, Qatari leaders have overseen a course of major economic growth, increased diplomatic engagement, and limited political liberalization. The Qatari monarchy founded Al Jazeera, the first all-news Arabic language satellite television network, in 1995. Over time, the network has proven to be as influential and, at times, as controversial as the policies of its founders, including during recent unrest in the Arab world. In June 2013, Emir Hamad bin Khalifa al Thani abdicated in favor of his son Tamim bin Hamad, marking the first voluntary and planned transition of power in Qatar since it became an independent country in 1971. In a 2003 referendum, Qatari voters approved a new constitution that officially granted women the right to vote and run for national office. The constitution envisions elections for two-thirds of the seats in a national Advisory Council. However, elections have not been scheduled, and the term of the current Advisory Council has been extended to 2016. Central Municipal Council elections were last held in May 2011. -
November 2017 Volume 9, Issue 4
Proceedings A monthly newsletter from McGraw-Hill Education November 2017 Volume 9, Issue 4 Contents Dear Professor, Hot Topics 2 Video Suggestions 15 Happy fall season, everyone! Welcome to McGraw-Hill Education’s November 2017 issue of Proceedings, a newsletter designed specifically with Ethical Dilemma 21 you, the Business Law educator, in mind. Volume 9, Issue 4 of Proceedings Teaching Tips 32 incorporates “hot topics” in business law, video suggestions, an ethical dilemma, teaching tips, and a “chapter key” cross-referencing the November Chapter Key 35 2017 newsletter topics with the various McGraw-Hill Education business law textbooks. You will find a wide range of topics/issues in this publication, including: 1. The Harvey Weinstein sexual harassment scandal; 2. A recent sexual harassment scandal in the United States military; 3. Constitutional (free speech) issues related to President Donald Trump’s Twitter account; 4. Videos related to a) a case involving due process in the United States military and b) Senator Hillary Clinton’s claim that sexism and racism are “endemic” in America; 5. An “ethical dilemma” related to the opioid crisis in the United States; and 6. “Teaching tips” related to Article 1 (“Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades”), Article 2 (“Army Sacks General for Sexy Texts to Wife of a Sergeant”), and Video 2 (“Hillary Clinton: Misogyny is ‘Endemic’”) of the newsletter. I wish all of you a fantastic remainder of the fall semester! Jeffrey D. Penley, J.D. Catawba Valley Community College -
Administration of Barack Obama, 2014 Statement on the Release Of
Administration of Barack Obama, 2014 Statement on the Release of Sergeant Bowe R. Bergdahl, USA, From Captivity by Taliban Forces in Afghanistan May 31, 2014 Today the American people are pleased that we will be able to welcome home Sergeant Bowe Bergdahl, held captive for nearly 5 years. On behalf of the American people, I was honored to call his parents to express our joy that they can expect his safe return, mindful of their courage and sacrifice throughout this ordeal. Today we also remember the many troops held captive and whom remain missing or unaccounted for in America's past wars. Sergeant Bergdahl's recovery is a reminder of America's unwavering commitment to leave no man or woman in uniform behind on the battlefield. And as we find relief in Bowe's recovery, our thoughts and prayers are with those other Americans whose release we continue to pursue. For his assistance in helping to secure our soldier's return, I extend my deepest appreciation to the Amir of Qatar. The Amir's personal commitment to this effort is a testament to the partnership between our two countries. The United States is also grateful for the support of the Government of Afghanistan throughout our efforts to secure Sergeant Bergdahl's release. This week, the United States renewed its commitment to the Afghan people and made clear that we will continue to support them as their chart their own future. The United States also remains committed to supporting an Afghan-led reconciliation process as the surest way to achieve a stable, secure, sovereign, and unified Afghanistan.