Tag Archives: Buck McKeon

The law that Obama violated in releasing 5 terrorists from Gitmo in exchange for Bowe Bergdahl

Note: This post has been significantly revised and updated on June 9, 2014.

kingOn Jan. 15, 2014, Obama told Senate Democrats that when Congress stands in his way, “I’ll act with or without Congress.” (AP)

On June 30, 2009, U.S. Army Pfc. Bowe Bergdahl of the 1st Battalion of the 501st Parachute Infantry Regiment, went missing from a remote military outpost in Paktika Province on Afghanistan’s border with Pakistan.

He was captured by the Taliban and imprisoned for 5 years — the only U.S. prisoner of war in the Afghan war.

On May 31, 2014, without consulting Congress as required by federal law, in exchange for Bergdahl, the Obama administration released five prisoners from the U.S. detention camp for terrorists in Guantanamo Bay, Cuba.

The five men were the most senior Afghans held at Gitmo: Mohammad Fazl, Khairullah Khairkhwa, Mullah Norullah Noori, Mohammed Nabi, and Abdul Haq Wasiq. They were released to Qatar, where they received a hero’s welcome from the Taliban.

House Armed Services Committee chairman Rep. Buck McKeon of California and Senate Armed Services Committee ranking member Sen. Jim Inhofe of Oklahoma said Obama had “clearly violated laws which require him to notify Congress thirty days before any transfer of terrorists from Guantanamo Bay, and to explain how the threat posed by such terrorists has been substantially mitigated.” (Source: Daily Mail)

CNN legal analyst Jeffrey Toobin also said Obama “clearly broke the law. The law says 30-days’ notice. He didn’t give 30-days’ notice.” Obama’s opinion expressed in a signing statement “is not law. The law is on the books, and he didn’t follow it.” (Source: Mediaite)

So which federal law had Obama violated?

Writing in The Washington Times, Florida International University constitutional law professor Elizabeth Price Foley claims that the law is Section 1028 of the 2013 National Defense Authorization Act (NDAA), which prohibits any funds to be used “to transfer any individual detained at Guantanamo to the custody or control of any other foreign country” unless the secretary of defense certifies to Congress, “not later than 30 days before the transfer.” Sec. 1028 also states that the receiving country will detain the individual appropriately and “has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or re-engage in any terrorist activity.”

But Professor Foley is mistaken. Thanks to alert CODA reader Rich Fueyo, the law in question is actually Section 1035 of the 2014 National Defense Authorization Act (NDAA) or H.R. 3304 (read it in PDF here), which was signed into law by Obama on Dec. 26, 2013.

Specifically, Obama’s prisoner swap violated the following:

1. 2014 NDAA, Sec. 1035(a)(1): “The Secretary of Defense is authorized to transfer or release any individual detained at Guantanamo…if the Secretary determines…the individual is no longer a threat to the national security of the United States.”

But Defense Secretary Chuck Hagel did not determine that Mohammad Fazl, Khairullah Khairkhwa, Mullah Norullah Noori, Mohammed Nabi, and Abdul Haq Wasiq are “no longer a threat to the national security of the United States.” In fact, Qatar is allowing the five men to freely roam about and expect to return them to Afghanistan in a month.

FOX News reports that while he was in Poland on June 3, 2014, Obama himself acknowledged there’s “absolutely” a risk that the former Guantanamo inmates will try to return to the battlefield.  On June 6, NBC reports that Noorullah Noori, one of the freed prisoners, already pledged to return and fight Americans in Afghanistan.

2. Sec. 1035(b)(1): “Except as provided in subsection (a), the Secretary of Defense may transfer an individual detained at Guantanamo to the custody or control of the individual’s country of origin, or any other foreign country, only if the Secretary determines that actions that have been or are planned to be taken will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests; and (2) the transfer is in the national security interest of the United States.”

But the American people are not told how the release of the five terrorists “is in the national security interest of the United States.” Instead, Hagel said the prisoner exchange was negotiated for humanitarian reasons, “essentially to save his [Bergdahl’s] life.”

3. Sec. 1035(c)(2) states: “the Secretary of Defense shall specifically evaluate and take into consideration the following factors…The security situation in the foreign country to which the individual is to be transferred, including whether or not the country is a state sponsor of terrorism….”

But on March 4, 2014, Treasury undersecretary David Cohen cited Qatar while speaking about state sponsors of terrorism during remarks to the Center for a New American Security. Cohen said, “Iran is not the only state that provides financial support for terrorist organizations. Most notably, Qatar, a longtime U.S. ally, has for many years openly financed Hamas, a group that continues to undermine regional stability. Press reports indicate that the Qatari government is also supporting extremist groups operating in Syria.”

4. Sec. 1035(d): “The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection.”

Hagel did not comply with the 30 days requirement.

Professor Foley claims that the Obama administration justifies its noncompliance with the 2013 NDAA in two ways:

  1. It cites Subsection (d) of Section 1028, which permits Congress to be bypassed if transfer out of Gitmo “is in the national security interests of the United States.” However, as explained above with regards to Section 1035 (b)(1) of the 2014 NDAA, the Obama administration has not articulated how, exactly, national security interests demanded the release of these five Taliban leaders.
  2. The Obama administration suggests that Section 1028 is itself unconstitutional. For that matter, when Obama signed the NDAA into law, he issued a statement opposing Section 1028 because he believed it infringed on his power as commander in chief. That being said, it is not up to Obama to decide whether a law is unconstitutional. That is the purview of the Supreme Court. Nor can a President simply ignore a law because he thinks it to be unconstitutional.

The fact of the matter is that while the Constitution does give the president broad power over the military as commander in chief, that power is shared by Congress through various provisions in Article I of the U.S. Constitution, including the power to:

  • “make Rules for the land and naval Forces”;
  • “raise and support Armies”; and
  • “define and punish Offenses against the Law of Nations.”

In 1952, in the case of Youngstown Sheet and Tube Co. v. Sawyer in which the Supreme Court ruled against President Harry Truman’s seizing of domestic steel mills for the Korean War, Justice Robert Jackson said if a president acts in defiance of Congress, his power “is at its lowest ebb” and courts must scrutinize the president’s claim of power “with caution, for what is at stake is the equilibrium established by our constitutional system.”

In the case of the Bergdahl prisoner exchange, what has inflamed public opinion goes beyond Obama’s violation of federal law to include:

1. Bowe Bergdahl’s character:

  • He was a deserter: The soldiers who had served with Bergdahl say so, as reported by CNN. He had left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life, as reported by the New York Times. An official Pentagon report concluded in 2010 that Bergdahl was a deserter, as reported by the Daily Mail.
  • The Taliban claimed in 2010 that Bergdahl had converted to Islam and was teaching bomb-making to its jihadists. (Source: Jihad Watch)
  • Bergdahl was anti-American and had complained about fellow soldiers, as reported for the Rolling Stone by the late Michael Hastings who died in a suspicious single-car accident on June 18, 2013.
  • According to Fox News (via The Blaze), Bergdahl had written a note expressing a desire to renounce his American citizenship.

2. Bowe Bergdahl’s father, Robert, in a White House appearance with Obama at his side, praised Allah and Islam in Arabic: “Bismillah ir-Rahman ir-Rahim (In the name of Allah, most Gracious, most Compassionate).”

3. At least 7 U.S. soldiers were killed while looking for Bowe Bergdahl (source:  The Daily Beast):

  1. Pfc Aaron Fairbairn
  2. Pfc Justin Casillas
  3. Pfc Morris Walker
  4. Staff Sergeant Clayton Bowen
  5. Staff Sergeant Kurt Curtiss
  6. Second Lieutenant Darryn Andrews
  7. Staff Sergeant Michael Murphrey

~StMA

Pentagon: China’s military advances to overtake U.S. in 5 years

WU-14The People’s Liberation Army’s hypersonic glide vehicle “WU-14”

Bill Gertz writes for The Washington Free Beacon, Jan. 28, 2014:

China’s recent test of a new ultra-high speed strike vehicle highlights growing concerns that Chinese military advances will overtake those of the United States in as few as five years, a senior Pentagon official told Congress Tuesday.

Frank Kendall, undersecretary of defense for acquisition, technology, and logistics, said during a House Armed Services Committee hearing that he is concerned by large-scale cuts in U.S. defense spending that are undermining efforts to maintain U.S. military superiority.

“On hypersonics, this is a good example of an area of technology that is going to move forward whether we invest in it or not,” Kendall told a hearing on the United States shift toward Asia. “China is doing work in this area.”

The Pentagon is investing some resources in two forms of hypersonic arms: a ballistic missile boost glide vehicle and a jet powered, atmospheric cruise missile, he said.

Kendall said the threat of such hypersonic vehicles to the United States is that they are difficult for missile defenses to counter. The vehicles travel and maneuver while flying at speeds of up to Mach 10 or 7,680 miles an hour.

“The high speed of these systems makes it much more difficult for air defenses to engage,” he said.

Kendall, in testimony on the Obama administration’s so-called “pivot” to Asia, said the Chinese development of hypersonic strike weapons is an area of technology that is likely to outpace U.S. efforts in the future.

“When I spoke earlier about feeling reasonably comfortable where we are today [with arms technology] but not necessarily so comfortable five or 10 years from not, this is one of the technologies that would be on that list of things that in five or 10 years we might have a much bigger problem with then,” Kendall said.

The comments followed questioning from Rep. Trent Franks (R., Ariz.), who said he shares the concerns about the Chinese hypersonic glide vehicle development and testing.

“My purpose here is to try to elevate that concern because I think it is a significant one, especially since given time, it will manifest,” Franks said.

The Washington Free Beacon first disclosed China’s Jan. 9 flight test of a hypersonic glide vehicle that the Pentagon has called the WU-14.

The experimental weapon is a new strategic strike capability China’s military is developing that is designed to defeat U.S. missile defenses. China could use the vehicle for both nuclear and conventional precision strikes on targets, including aircraft carriers at sea.

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Note: Wikipedia says “WU-14 is the Pentagon’s code name for a Chinese hypersonic glide vehicle (HGV) which conducted its first flight test on Jan 9th, 2014, as reported by Washington Free Beacon on Jan 14th, 2014.On Jan 15th, 2014, Chinese Defense Ministry confirmed the test in a two-sentence statement faxed to news agencies and state-run media in Beijing. The Free Beacon said the test made China the second country after the United States to have successfully tested a hypersonic delivery vehicle able to carry nuclear warheads at a speed above Mach 10 – or 12,359 kilometers per hour (7,675 mph).”

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U.S. officials said that, while the glide vehicle test was not an intelligence surprise, it showed China is moving much more rapidly than in the past in efforts to research, develop, and test advanced weaponry.

Adm. Samuel Locklear, commander of the U.S. Pacific Command, noted that the hypersonic test demonstrated China’s ability to move quicker than the United States in developing some advanced arms.

“The Chinese, as other nations are, are pursuing hypersonic technologies,” Locklear said last week at the Pentagon. “This is just one of many, you know, highly technical militarized systems that whether the Chinese are developing them, or we’re developing them, or Europeans are developing, that will continue to complicate the security environment with high-technology systems.”

“We will have to figure them into the calculation of how we’re going to maintain a peaceful security environment in the future,” he added.

Committee Chairman Rep. Buck McKeon (R., Calif.), along with subcommittee chairmen Reps. Randy Forbes (R., Va.) and Mike Rogers (R., Mich.), described the hypersonic test in a statement as the Chinese military “leaping ahead of us” in arms development.

“The Asia Pacific is fast becoming a powder keg,” the lawmakers said. “Allowing nations that do not share our respect for free and open avenues of commerce to gain a strategic advantage over the United States and her allies only brings us closer to lighting the fuse.”

Vice Adm. Frank Pandolfe, director of strategic plans and policy for the Joint Staff, said during the hearing that he would only discuss the Chinese hypersonic test in a closed-door hearing.

Earlier, Kendall said the Pentagon is facing numerous challenges to the U.S. military’s technological superiority, including in Asia, as part of a new policy designed to prevent China and other nations from blocking U.S. access to the region.

“Anti-access/area denial capabilities that concern us cover a range of conventional capabilities,” Kendall said. “In the case of China in particular, for example, they include space control investments; offensive cyber capabilities; conventional ballistic and cruise missiles with precision seekers designed to attack both fixed land installations and surface ships, including aircraft carriers; air-to-air capabilities, including fifth-generation fighters; long-range missiles with advanced technology seekers; and electronic warfare systems.”

China is expected to field a new fight-generation jet fighter, the J-20, in the next few years and also could export the aircraft to other states, he said.

At the same time, the U.S. military is being cut sharply, undermining both high-technology weapons development.

“China’s pursuing a long-term comprehensive military modernization program focused on anti-access/area denial capabilities,” Kendall said. “Today our investments, on the other hand, are being limited by budget cuts that fall disproportionately on modernization, research and development and procurement.”

The Obama administration has cut more than $500 billion dollars from defense spending in the past several years.

“The size of the immediate reductions we are experiencing is bad enough,” Kendall said. “Uncertainty about future budget reductions make sizing our force problematic and encourages a slower drawdown in our force structure. This in turn causes even larger reductions in modernization.”

Kendall said that until military forces are reduced to sustainable levels, “we will be forced to disproportionately reduce modernization, the very investments that provide with technological superiority in the Asia-Pacific region and elsewhere.”

Last year, the Pentagon spent around $65 million on hypersonic weapons research and development in its Prompt Global Strike program. The figure included a cut of $66 million from earlier proposed spending. Another $45 million was allocated to the Defense Advanced Research Projects Agency for hypersonic work.

Officials said the Lockheed Martin hypersonic glide vehicle demonstrator, known as HTV-2, is being shelved after two tests. The HTV-2 is designed to travel at Mach 20 or 15,224 miles per hour.

Boeing is developing a X-51 Waverider, a scramjet powered high-speed vehicle. The Army is also developing an advanced hypersonic weapon that could be used for high-speed missile defenses.

A congressional aide said U.S. development of hypersonic weapons is required under U.S. strategic nuclear reviews and guidance but the administration has failed to adequately pursue the weapons.

If the forthcoming defense budget request, scheduled for release March 4, adds funds for hypersonics, it would be a sign of renewed commitment following the Chinese test, the aide said.

“We’ve been pushing them and trying to get them to do more. But it’s not clear whether we’re pushing against an open door or closed door,” he said.

Kendall declined to comment on the administration’s fiscal 2015 request.

But other defense officials said funding for hypersonic weapons could be increased for fiscal 2015 in the aftermath of the Chinese test.

Kendall said he is “very comfortable” with U.S. weapons capabilities today.

“I’m not sure we will say that in five or 10 years down the road,” he said. “And the trajectory for our relationship with China is uncertain today, where we’re going to go in the future, one of the reasons we’re focused on the Asia Pacific is we want to do our best to influence that trajectory to go in a positive way.”

He said there is a range of weapons and technologies that need greater investment “than we may be able to afford with the current levels.”

McKeon said at the hearing that he is concerned that plans to refocus on Asia from wars in the Middle East and South Asia may contribute to global insecurity.

“When the president framed rebalance, he discussed how we could now safely turn our attention to Asia because the war in Afghanistan was receding, and al Qaeda was on the path to defeat,” McKeon said.

“I’m concerned these commissions haven’t panned out. Violence and instability rage in the Middle East and Africa. Preserving forces’ readiness and capabilities in [Pacific Command] means less elsewhere. Can we afford to take risk in [Central Command] or [Africa Command]?

McKeon questioned the validity of the shift to Asia and noted that the budget for the U.S. Pacific Command is being cut. Defense budget cuts have made the problem worse, he said. The recent passage of the omnibus spending bill provided some stability for the next two years, but after that the same problems will reemerge.

“And military leaders are left with no choice but to cut end strength, readiness and capabilities,” he said of the future. “And that has consequences for our security and military commitments in Pacom and across the globe, unless we adequately resource defense.”