The Bergdahl Exchange — a Wider Legal View

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Louis Rene Beres:

A number of plainly sensible arguments have already been raised in opposition to President Obama’s exchange of an American military prisoner for assorted Taliban terrorists. Wherever these arguments have centered on the expected creation of additional and possibly new risks to Americans, they have been compelling, even unassailable. Now, however, it should also be pointed out that there are certain vital and sometimes intersecting issues of U.S. law and international law involved in this matter. These specifically jurisprudential issues warrant immediate and informed clarification.

First, however, a non-legal reaction. It goes without saying that any reassurances offered by the government in Qatar are silly and humiliating at best. For any American president to take seriously that Qatar or any other Arab government would meaningfully supervise the behavior of Islamist terrorists — and to do so as a transparently servile subcontractor for Washington — is to embrace a blatantly surreal geopolitics.

Now, back to law. A core element of all civilized legal systems is the rule of Nullum crimen sine poena, “No crime without a punishment.” This ancient principle, strongly reaffirmed at the post-World War II Nuremberg Trials, is indisputably part of all international law. It applies very conspicuously in the current controversy over the Bergdahl-Taliban exchange.

Terrorism is an amply-codified crime under international law, one that has been suitably “incorporated” into U.S. law. However inadvertent, President Obama’s exchange of terrorists for an American soldier constitutes an American act of complicity with terrorism. This criminal complicity places our country in violation of both international law, and the municipal law of the United States. It is entirely undiminished by any internal concerns for Sgt. Bergdahl’s “due process” under pertinent U.S. codes of military justice.

In part, at least, any such violation is two-fold, because all international law has been declared part of U.S. law (the “supreme law of the land”) by Article 6 of the U.S. Constitution (as treaty law), and by a number of landmark Supreme Court decisions (as customary law), especially, the Paquete-Habana, 1900.

In June 2003, the Shurat HaDin Law Center in Israel, in astute anticipation of terrorist releases, condemned Israel’s planned freeing of 100 Palestinian terrorist prisoners. Later, almost five times that number were actually set loose by then Prime Minister Ariel Sharon. In her letter of criticism to the prime minister and members of his Cabinet, Shurat HaDin Director Nitsana Darshan-Leitner had written presciently that releasing terrorists would promptly reignite Arab terrorism against Israeli civilians.

Darshan-Leitner was correct. Soon thereafter, two newly-released Fatah-linked terrorists proceeded to launch suicide bomb attacks in Israel. In one of these grotesque attacks, a café popular with mothers and their young children was blown to bits. The café had been represented by the perpetrator Arab terrorists as a “military target.”

There is more. Later, several of these terrorists were released to United States authority for training in nearby Jordan, to become a “more professional” part of Fatah’s “internal security forces.” This bizarre program, paid for handsomely by the American taxpayer, had been meticulously coordinated by U.S. General Keith Dayton.

In candor, these jurisprudential issues are not all that complicated. Every state has a “peremptory” obligation under international law to prosecute and punish terrorists. This incontrovertible obligation derives in part from “No crime without a punishment.” It is codified directly in many authoritative sources, and is also deducible from the universally binding Nuremberg Principles (1950).

According to Principle 1: “Any person who commits an act which constitutes a crime under international law is responsible therefore, and liable to punishment.”

Terrorism is clearly one of the most serious crimes under international law. The precise component offenses that comprise this conglomerate crime can be found, among other places, at The European Convention on the Suppression of Terrorism (1977). Notwithstanding Washington’s solemn assurances to the contrary, all of the released Taliban terrorists were also guilty of related crimes of war and crimes against humanity. These Nuremberg-category crimes are so egregious that the perpetrators are known in law as Hostes humani generis, “Common enemies of humankind.”

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“Obama Could Be Facing 10 Years To Life In Prison…”

“Shepard Smith asked Judge Andrew Napolitano whether or not the Taliban prisoner exchange was legal under the NDAA H.R. 1960 Statute. The judge explained that the swap was illegal because taxpayer dollars were spent to remove these prisoners from Guantanamo Bay without giving Congress 30 days notice. However, Napolitano goes a step further by pointing out that Obama has provided material assistance (human assets) to the Taliban, which has been identified by Congress to be a non-state terrorist organization. This is a crime punishable by imprisonment of 10 years to life, which covers all Americans–including the President.”

http://www.westernjournalism.com/judge-napolitano-obama-aided-abetted-enemy/