By Harold Pease PH. D
Fury from both parties hit the fan when President Barack Obama released five Gitmo prisoners—three top intelligence officers and two top military commanders—the five most wanted by the Taliban; one a former Taliban interior minister reportedly having had close ties with Osama bin Laden. These in exchange for Sergeant Bowe Bergdahl, said to be a traitor by his companions in Afghanistan when he walked off base seeking an Al Qaida representative. Five soldiers died in the subsequent search for a soldier who did not want to be found. The president excuses this action on the basis that Bergdadl was on death’s door and prisoners have been exchanged in other wars by other presidents. These explanations have been contested.
Senate Intelligence Committee Chair, Dianne Feinstein, was the most vocal Democrat to voice contempt. She said, “It comes with some surprise and dismay that the transfers went ahead with no consultation—totally not following the law. And, in an issue of this kind, of concern to a Committee that bears the oversight responsibility” (“Feinstein Says White House Broke the Law on Bergdahl,” NBC news, June 4, 2014). Republicans, notably Senator Lindsey Graham, threatened impeachment if it happened again.
Libertarian Judge Andrew Napolitano, spoke of the president’s action as unlawful for two reasons. One, Obama himself had signed the statute forbidding the use of taxpayers’ money with respect to Guantanamo detainees without a Congressional 30-day notice, which he violated. This was Senator Dianne Feinstein’s objection. Two, “by releasing these guys into the theater of war in the Middle East, he has provided material assistance to a terrorist organization.” This because “Federal statute makes it a crime, punishable by 10 years in prison to life, for materially aiding a terrorist organization” and, “the courts have ruled, any assistance knowingly or intentionally provided to a terrorist organization by an American makes that American liable for prosecution under this statute.” The assistance is the human assets that he has returned to the enemy. Anyone else would get 10 years to life in prison for doing the same thing (“Obama Could be Facing 10 Years to Life in Prison,” Shepard Smith interviews Judge Andrew Napolitano, FOX News, June 6, 2014).
Missing in the whole argument, and the reason for this column on an issue receiving much media coverage, is what does the Constitution say? All war powers are clearly listed in Article I, Section 8, clauses 10-17 and all are left to Congress alone except one, allowing the president to serve as commander and chief subject to this oversight. The Founders never intended for him to act alone independent of Congress. If other presidents have done so this does not make doing so constitutional. He most certainly cannot break a law that he helped create and sign.
But Article III Section 3 should have brought Mr. Obama to a quick halt. “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Is returning to the enemy three of their most distinguished intelligence personnel and two of their most distinguished military officers, each considered so dangerous that they had to be moved across a continent and an ocean to prevent them from escaping to strengthen the power of the enemy, giving Al Qaeda aid and comfort? How can a reasonable person argue otherwise? Arguably this gift of “human assets,” returned by our own president, is far more helpful to the enemy than money, commodities, equipment or even military secrets. That these five will serve for the rest of their lives to strengthen our enemy is not disputed.
The Constitution continues; “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” The overt act was the exchange. The President has clearly confessed, although not in court, and all of America exceeds the two-witness requirement. “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
Responsibility for punishing treason is left to Congress. The only restrictions to punishment are prohibition of corruption of blood (punishing relatives for the acts of one) and forfeiture of property, which must be returned to relatives after the death of the one punished for treason. Otherwise, again, innocent relatives would be punished. Certainly impeachment is an option, but something far greater is also an option as treason is the most serious national offense. The law broken already dictates the punishment if any other American did the same thing—ten years to life in prison.
Ironically the Democrats would be for impeachment and ten years to life in prison if it were a Republican president and vice versa for the other party. Political parties have destroyed us, as neither party will punish its own. Even when the vast majority believes Obama to have at least broken the law, if not having committed treason, he will remain unpunished because of party loyalty. A read of the Constitution clearly says that his action requires Congress to consider even treason, irrespective of party affiliation.