The Rule of Law Still Lives

It was refreshing, indeed, last week when the U.S. Supreme Court made clear that the law can still trump politics.

The phrase “a nation of laws” has been the mantra of constitutional government since our country’s founding.  But, alas, it’s often seemed to be an ideal only occasionally reached.  How else to explain the numerous high court splits of 5-4 along seemingly partisan lines with GOP-nominated justices on one side and Democratic Administration selections on the other?

But last week’s case on President Obama’s use of recess appointments was different.  The Administration’s actions were unconstitutional, the Court ruled 9-0.

Under Article 2, section 2, of the U.S. Constitution, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate…”

In 2012-2013, the President made appointments to the National Labor Relations Board which he claimed were made during Senate “recesses”.  Not coincidentally, those appointments had failed to win confirmation previously.  The Senate, however, did not consider itself to be in recess when the disputed selections to the NLRB were made.

The Court decided in a substantial nod to the Constitutional doctrine of separation of powers that the Senate, not the President, decides when it is recess.   Thus, the Justices agreed that Obama had no right to do what he did. 

To non-lawyers, these may seem like technical matters of little concern.  But, in reality, they are momentous. 

In our government, the Executive’s authority is not unrestrained.  The Court’s decision is a reminder that the Constitution continues to provide limitations on the President’s authority even if partisan advantage suffers as a result. 

The Court’s four liberal members are to be commended, at least in this case, for doing their duty.  They make America proud.

The Nature of War

We Americans can be an awfully parochial and naïve bunch.  Many of us leave the U.S. for the first time expecting emotionally, if not intellectually, that the world is just like here.  Only the languages and the landscapes will be different.

That attitude is not unreasonable.  We live in a huge country and few of us are exposed to significantly different cultures.

 

Seventy percent of Americans don’t have passports, for instance.  For those who do travel abroad, Europe is by far the most popular destination.  In terms of cultural shock, visiting England is not exactly the same as visiting Nigeria, Vietnam or Afghanistan.  Sgt. Bowe Bergdahl and his fellow soldiers were all stunned, I’m sure, by the intense poverty and “strange” cultural mores they witnessed in Afghanistan.

 

The general reaction, I imagine, was that they didn’t like what they saw and looked down on the locals with both a sense of superiority and contempt.  That’s in accord with human nature.  “Our way is better, so why do they refuse to learn from us?”  That expression is a fair summary of the common attitude.  Certainly that was the case during my time as a soldier in South Vietnam.

People in war sometimes surrender to temptations offered by the apparent absence of consequences.  A gun is power.  People being people – good,  bad – some will abuse the authority and do things they would never consider back home “in civilization”.  In a war zone, the veneer of civilization can be thin indeed.  Referring again to the apparent Afghan deserter, Bergdahl probably witnessed such things, became disillusioned with the army and made the fateful decision that he did.  Apart from the simple fact that he was not in Afghanistan as part of a tour group, who could drop out if he became unhappy, Bergdahl didn’t focus on the fact that the enemy certainly wasn’t full of angels, either.  Rather, they were known, for example, for murdering girls who simply wanted to go to school.

No, the choices are never between the saint and the devil.  But shades of gray do matter.  Our values of respect for life and freedom may be imperfectly practiced but which culture would you prefer to inhabit?  The Taliban’s or ours?  Bergdahl undoubtedly understands now the depth of his mistake.

Why Did President Obama Make the Bergdahl Trade?

Last week, I suggested that it made no sense for the White House to trade five high-ranking terrorists for a presumptive American deserter.   It’s certainly possible that he thought doing so might earn political kudos for the Administration by expecting the American public to be more pleased with the repatriation of an American soldier despite his circumstances and focus less on the cost incurred.  If so, he grossly miscalculated.

However, common sense tells me the explanation is to be found elsewhere.  For instance, note what the president stated in the middle of his Rose Garden announcing Sgt. Bergdahl’s release.  “We’re committed to winding down the war in Afghanistan and we are committed to closing down Guantanamo.”

Was he saying, in part, that recovering Bergdahl was tying up a loose end on the way to getting out?  But what does that have to do with the military prison at Guantanamo Bay, Cuba?

Remember, in January of 2009, almost immediately after being sworn in, President Obama pledged to close the facility.

It’s eerie, almost scary in a way.  He may simply be checking off promises made.  In another context, that would be welcome and refreshing in a politician. 

But for our president, his promises were made in a pre-White House state of ignorance.  His experiences of the past five and a half years should have corrected that condition and made clear the unwise nature of what he'd previously hoped to accomplish.  Alas, the ideological blinders have remained in place.

Thus, Obama is taking pride in doing what he said he would do.  Consequences be damned.

 

What does he expect the released Taliban leaders to do?  He admits they will probably return to the fight.  But we’re leaving Afghanistan soon (contrary to military advice), so it’s not our problem.  No wonder the Afghan government was vociferously opposed to the Bergdahl deal.  Hey, but a box will be checked off!

And where does Obama put the several hundred terrorists still held at Gitmo?

What does it matter if there are no other options?  They’ll simply be set free to return to the battlefield.  Our withdrawal ends U.S. involvement in the war in Afghanistan, but the war will continue.  Unfortunately, our premature departure and the releases of enemy leaders significantly decrease prospects of survival for our Kabul allies.

 

Is it too much to suggest that Obama really doesn’t care?  His conduct and plans suggest that he doesn’t.  But he will have checked off another box.  The effects will be the problem of his successor and America’s friends around the world.

For the outgoing president, though, his belief in his legacy will be secure.  He kept his promises.  (Well, some of them.  “You can keep your doctor,” doesn’t count for those lies were simply for our own good, weren’t they?)

A War Veteran’s Perspective on the Release of Sgt. Bergdahl

When I was in South Vietnam, I developed close bonds with the soldiers with whom I served.  We ate, lived, patrolled and worked together.  In a civilian setting, we might not have become friends, but in a war zone we counted on each other.  We needed to. That’s the way it was in Vietnam and, I’m sure, everywhere and every time soldiers gather in war.

Put yourself in a soldier’s boots.  How would you feel about the fellow soldier with whom you thought you had bonded who deserted you?  What is the opposite of the intense loyalty to one’s fellows that combat generates?  Disloyalty causes intense anger and even hatred.

If you’ve seen the interview with Bergdahl’s former platoon members in Afghanistan, you know what I mean.

Of course, Sgt. Bergdahl’s desertion was not widely known in the United States when President Obama announced last week the captive soldier’s release.

So his declaration in explaining the concurrent freeing of five high ranking Taliban prisoners that “the U.S. does not ever leave our men and women in uniform behind” was unremarkable, if not historically accurate.  [For instance, there were American deserters in North Korea left behind after the 1953 Armistice.]

But the sentiment took on more meaning when details about Bergdahl’s conduct emerged.

If he left his unit voluntarily – deserted – did he not sacrifice his right to be rescued?

Had he changed his mind?  In 2009, when he fell (walked?) into enemy hands, he was twenty-three.  How did we know what his attitude was at twenty-eight?  Some say America’s responsibility to a soldier in captivity is the same whether he be a “hero” or a “heel”.  So the cost of his release (in other words freeing five terrorists) should not be a factor.

Sounds good but it’s nonsense.  Who really believes that a war hero’s life should – or is - valued the same as a traitor’s, or that “any” price is ok?

So why, really, did President Obama grant freedom (subject to a one year travel confinement to Qatar) to five prominent Taliban leaders?

I will give my answer in next week’s blog.

How Can Anyone Defend Obama’s Foreign Affairs Performance?

It’s not easy, nor successful, but some try.

One of the more remarkable aspects of reactions to President Obama’s foreign speech at the U.S. Military Academy last week was the negative reviews it generated.  Apart from MSNBC’s commentators, the President’s speech was generally panned as defensive and disconnected from reality.

Even the New York Times editorial board – usually a reliable Obama cheerleader – was unimpressed.  The speech was “largely uninspiring” and illustrated why “many still doubt that he fully appreciates the leverage that the U.S. has even in a changing world.”

But our President still has champions who loyally raise his standard.

Colbert I. King, a Washington Post columnist, who usually confines his topics to matters of local interest, was game to come to Obama’s defense.  But his efforts underline the difficulty of the task.

A fair review of Barack Obama’s performance certainly would include credit for the killing of Osama Bin Laden and drone hits on Al Qaeda targets.  The President would also cite the withdrawal of U.S. forces from Iraq and Afghanistan but evaluation of the consequences is premature.  Is there really anything else of substance over the past five and a half years to commend?

Of course, there has been lots of talking, warnings and threats coming from the White House.  But, in sum, they have either not been worth a damn (Russian reset) or have been counterproductive (Syrian red line).

But Mr. King wasn’t daunted. 

“You see, Obama’s Republican attack dogs… refuse to accept a president who is cautious and thoughtful and all too aware that every problem related to peace and freedom does not have a military solution.”

To be sure, some might say the President’s “caution and reflections” are synonymous with indecision and naiveté (Syria and Russia).  And it is foolishness not to realize that the possible use of force underpins effective diplomacy.  (Obama renounced force or military support for Ukraine).

The Post writer closes his defense by reciting the President’s own fall-back argument:  There is no acceptable alternative to the action or inaction of the Administration.

“Nothing short,” King insists, “of a U.S. occupation of Afghanistan and Iraq, America bombing Damascus and Tehran, and the deployment of U.S. troops to the Ukraine-Russian border will satisfy those who take issue with everything our President does or does not do.”

Unfortunately for the strength of Mr. King’s argument, the GOP “attack dogs” have proposed none of these actions.  As does the President, the Post columnist is putting forth a fallacious “strawman” argument.

The fact is, I suspect, Colbert I. King knows, for he is no fool, that President Obama does not understand the world.  He does not recognize that words without follow-through create a perception of weakness and undependability.  Foreign leaders, both friend and foe, can be expected to act not on a perception that Obama means well but rather on an appreciation of what is within their national interests.  Their regard for America depends on respect for what we might – not merely can – do.  The President’s disinclination to act on behalf of America’s national interest has been noted.

Barack Obama has shown himself to be a weak, feckless force on the world stage.  The perception is the reality.  Defensive polemics cannot change that.