"A divided federal appeals court in Washington, D.C., on Friday tossed out an agreement that would have allowed 9/11 terror mastermind Khalid Sheikh Mohammed to plead guilty...."

"The 2-1 D.C. Circuit appeals court decision upheld then-Defense Secretary Lloyd Austin’s decision to undo the plea deal approved by military lawyers and senior Pentagon staff. The deal would have carried life without parole sentences for Mohammed and two co-defendants, potentially taking capital punishment off the table.... [L]egal concerns stemmed from whether the original plea deal was legally binding and whether Austin waited too long to get it dismissed. The court found Austin indisputably had legal authority to withdraw from the agreements because the promises made in the deal had not yet been fulfilled, and the government had no adequate alternative remedies...."

The NY Post reports.

"The Pentagon carried out the secret operation in the early hours of Monday..."

"... days before Guantánamo’s most notorious prisoner, Khalid Shaikh Mohammed, was scheduled to plead guilty to plotting the Sept. 11, 2001, attacks that killed nearly 3,000 people in exchange for a life sentence rather than face a death-penalty trial. The handoff had been in the works for about three years. An initial plan to conduct the transfer in October 2023 was derailed by opposition from Congress. The 11 who were released included Moath al-Alwi, a former long-term hunger striker who gained attention in the art world for building model boats from objects found at the Guantánamo prison; Abdulsalam al-Hela, whose testimony was sought by defense lawyers in the U.S.S. Cole case; and Hassan Bin Attash, the younger brother of a defendant in the Sept. 11 conspiracy case...."

From "U.S. Sends 11 Guantánamo Prisoners to Oman to Start New Lives/The secret mission left the smallest number of prisoners at Guantánamo Bay since the day the detention center opened in 2002" (NYT).

"The tone of the Republican questioning of the public defenders [nominated as federal judges] has alarmed Democrats and..."

"... has them bracing for tense moments during Judge [Ketanji Brown] Jackson’s hearings. Senator Richard J. Durbin, Democrat of Illinois and the chairman of the Judiciary Committee, has argued that Republicans aim some of their harshest fire at 'assertive women of color' to suggest they are 'soft on crime.' Democrats contend that these attacks are tied to a central element of Republicans’ midterm campaign strategy, which is to blame Democrats for an increase in crime by portraying them as unwilling to punish lawlessness and hostile to law enforcement.... Republicans deny that they are trying to bar an entire category of potential judges. [Senator Tom] Cotton said he did not believe that criminal defense work was disqualifying, but that it was only appropriate to judge nominees by the cases they had accepted.... As for Judge Jackson, Mr. Cotton pressed her during her appeals court hearing last year on her work for terror detainees whom she was appointed to represent, though she continued to challenge Bush-era detention polices after she entered private practice."

From "As Jackson Faces Senators, Her Criminal Defense Record Is a Target/Republicans have vilified Biden’s judicial nominees who have represented criminal suspects. Judge Ketanji Brown Jackson, for the Supreme Court, is the most prominent" (NYT).

"Another 9/11 Anniversary... Amid Hurricane Irma."

Today is 9/11, and we've come to expect solemn remembrance of the horrible destruction that took place 16 years ago, but there's ongoing real-life destruction in the news. Hurricane Irma has sole possession of the headlines this morning. I looked for stories that combine the news of the hurricane with remembrance of 9/11 and found very little. There's "Wife of 9/11 victim to mark day with hurricane relief" at The Boston Herald. That's small and tasteful. At The New Yorker, there's a different kind of effort to attach the 2 stories, "Another 9/11 Anniversary at Guantánamo, Amid Hurricane Irma" (by Amy Davidson Sorkin).

[A] measure of the futility of the legal response to the attacks is that there will soon enough be young military officers, at least eligible to serve as the equivalent of jurors on the military commission, who were also born after 9/11....

Meanwhile, the base made it through Irma relatively well, with downed power lines but few signs of damage, Rosenberg reported. There were, she noted, a few wet spots in the courtroom ceiling, which would need new tiles. The next time hurricane winds shift to Guantánamo, it might be better prepared. And the 9/11 trial, with its maddening mix of tragedy and absurdity, and its too-delayed promise of justice, might even be under way.

The pressure on Obama to pardon Bowe Bergdahl and put him out of reach of the President-elect who has him “a no-good traitor who should have been executed.”

Obama gave up 5 Taliban detainees to get Bergdahl back, and now Bergdahl, who faces trial for desertion and misbehavior, is pushing for a pardon.

At rallies, Mr. Trump repeatedly brought up the prisoner exchange as a bad deal. At a town hall-style meeting in August 2015, for example, he called Sergeant Bergdahl a “dirty, rotten traitor” and pantomimed shooting him. Mr. Trump also falsely claimed that Americans were killed searching for Sergeant Bergdahl and that the five Taliban ex-detainees were back on the battlefield.....

The administration transferred the Taliban detainees without obeying a statute requiring it to notify Congress 30 days before the transfers.... In addition, former soldiers came forward to describe the circumstances of his capture, accusing him of desertion. That fueled Republican complaints that sending the Taliban detainees to Qatar had been too steep a price....

The argument for a pardon seems to be that a Trump administration cannot give Bergdahl a fair trial.

I don't think the White House Correspondents Dinner people enjoyed Larry Wilmore very much.

Everyone looks so uncomfortable. Which is a good thing, right? Why should he make these people comfortable? Here's the transcript. I'll try to excerpt what I think this crowd may have disliked the most:

And I have to admit it’s not easy to follow the president, man. You got some jokes. Mr. President. The president’s funny. Stay in your lane, man. You don’t seem me going around president-ing all the time, right? I don’t go around passing health care, and signing executive orders, pardoning turkeys … not closing Guantanamo. Oh wait, maybe I did do that.

But I have to say, it’s great, it looks like you’re really enjoying your last year of the presidency. Saw you hanging out with NBA players like Steph Curry, Golden State Warriors. That was cool. That was cool, yeah. You know it kinda makes sense, too, because both of you like raining down bombs on people from long distances, right? What? Am I wrong?

Speaking of drones, how is Wolf Blitzer still on television? Ask a follow-up question. Hey, Wolf, I’m ready to project tonight’s winner: Anyone that isn’t watching “The Situation Room.”...

But I have to say, about the first lady, it’s so nice to have dinner with you. She is the epitome of grace, class and poise, isn’t she? She really is. Not to be confused with future first gentleman Bill Clinton, whose three favorite strippers are named Grace, Class and Poise....

I’m impressed with the people in this room. There are so many rich, powerful people in this room. You know, it’s nice to finally match the names to the faces in the Panama Papers. It’s very nice....
MSNBC — MSNBC here tonight? No? Which actually now stands for “Missing a Significant Number of Black Correspondents.” Am I wrong? They like fired Melissa Harris-Perry, they canceled Joy Reid, they booted Touré. I heard they put Chris Hayes on probation because they thought he was related to Isaac Hayes.... MSNBC got rid of so many black people I thought Boko Haram was running that network. What was going on…?

You know, I should say some of America’s finest black journalists are here tonight. Don Lemon’s here, too. Hey, Don, how’s it going? Alleged journalist Don Lemon, everybody.

The camera shows Don Lemon giving him the finger.

I'll bet the audience was expecting more and harsher focus on Donald Trump. There was a reference to "his genitalia" — which took a shot at a Democrat (calling it "his President Johnson") —  to his "little baby hands" — the reason "everyone treats Donald Trump with kid gloves" — and an attack on "Morning Joe" for giving him so much favorable TV time — "Morning Joe: has their head so far up Trump’s ass they bumped into Chris Christie." But Wilmore delivered more pain to Democrats — politicians and the press.

There were also the transgressive racial words, from the beginning middle and end of the speech: 1. "negro" ("Well, welcome to 'Negro Night' here at the Washington Hilton, or as Fox News will report, 'Two thugs disrupt elegant dinner in D.C.'"), 2. "jigaboo" ("Ben Carson... praised Jackson... From the grave, Andrew Jackson replied, 'What did that jigaboo say?'"), and 3. "nigga" ("So, Mr. President, if I’m going to keep it 100: Yo, Barry, you did it, my nigga. You did it.").

Obama did a great job of laughing and looking like he had a sense of humor about everything. Why shouldn't he? He had his speech too, and it was already done and — probably most people would say — funnier and better delivered. Check it out:

"He could easily name Merrick Garland, who is a fine man," said Orrin Hatch a few days ago.

"The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him."

And that's the nominee we're about to get... according to CNN. How can the GOP Senators say no? It's a challenge!

ADDED: "Who is Merrick Garland?"

Garland’s relatively advanced age [63] may help explain why Hatch floated the DC Circuit chief judge as his ideal Obama nominee. Another factor that almost certainly played a role is Garland’s reputation for moderation. In 2003, for example, Garland joined an opinion holding that the federal judiciary lacks the authority “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States” — an opinion that effectively prohibited Guantanamo Bay detainees from seeking relief in civilian courts. A little over a year later, the Supreme Court reversed this decision in Rasul v. Bush....

The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.”...

The Garland nomination.... appears to be an attempt to box in Senate Republicans who’ve refused to confirm anyone Obama nominates.

But doesn't it also mean that Obama doesn't expect this nominee to be confirmed? It's a political game and he's chosen the best person for that game. Other names are saved for other games.

"We won with young. We won with old. We won with highly educated. We won with poorly educated. I love the poorly educated."

"We’re the smartest people, we’re the most loyal people, and you know what I’m happy about? Because I’ve been saying it for a long time. 46% were the Hispanics—46%, number one with Hispanics. I’m really happy about that.... We’re going to keep—as you know Gitmo, we’re keeping that open, and we’re going to load it up with bad dudes. We’re going to load it up with a lot of bad dudes out there. We’re going to have our borders nice and strong. We’re going to build the wall, you know that. We’re going to build the wall. And I have a lot of respect from Mexico and you just heard we won Hispanics. But let me tell you Mexico is going to pay for the wall, right? It’s going to happen. It’s going to happen. They know it. I know it. We all know it.... We’re going to be the smart people. We’re not going to be the people that get pushed around all over the place. We’re going to be the smart people. You’re going to be proud of your president, and you’re going to be even prouder of your country, OK?"

Donald Trump, on winning Nevada. Full text. Full video:



I'm adding the "pride" tag. His theme is pride — self esteem. I think the message is: Even if you're poorly educated — especially if you are poorly educated — you are smart, and you are American, and you should feel great. All those other politicians look down on you, and they look down on the country. They insult it. They use the worst insults, like "racist." They'd have you believe that it's racist to say "Make America great again" and to want to preserve the benefits of America for Americans and to increase those selfishly guarded benefits. But it's not something to be ashamed of, it's being smart. And he's very smart, and we — you, with me leading the way — "are going to be the smart people."

"Here's a guy, Sergeant Bergdahl. We get Bergdahl, a traitor, a no-good traitor, who in the good old days would've been executed, and they get five killers who are right now out on the battlefield."

Said Donald Trump — one quote of many in a Business Insider piece titled "Donald Trump just gave an amazingly surreal speech in Las Vegas."

Is that headline an attempt at humorously emulating Trump's way of speaking? It must be, and I'm wondering at what point the strategy of regarding him as a clown will be abandoned. I'm giving up my failed strategy, which was: If I don't view him as real, he is not real.

Justice Thomas decided long ago never to walk in anyone's shadow.

I burnt out trying to read (and blog) all 5 of the Obergefell opinions yesterday. I was getting annoyed slogging through the Chief Justice's long cogitation about restraint after getting through Scalia's relatively playful romp through the topic (and the frustrating fuzziness of the majority opinion), and I just couldn't get to the work of Justices Thomas and Alito.

But let me finish the task I assigned myself and move on to live-blogging my reading of the Thomas dissent (which is joined by Scalia):

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. 

This is an excellent beginning, highlighting the main problem with using substantive due process — the idea of fundamental liberties (the "right to marry") — rather than equal protection. It's easy to see that the government is subject to equal protection limits as it hands out benefits, but maybe liberty should have only to do with being left alone to do what you can do on your own without interacting with the government.

So I'm very interested in what Thomas has to say about equal protection (which I think makes the most sense as the basis for the right), but he has almost nothing to say. He drops a footnote early on, observing that the majority says it's using equal protection, but it's "clearly" only using it "to shore up its substantive due process analysis." I agree, but when you're finding a right, one is enough. If you're rejecting the claim of right, you need to reject both grounds. Thomas should at least have articulated a legitimate government interest to be advanced by excluding same-sex couples from the legal institution of marriage. In my view, it cannot be done. (Listen to the oral argument to hear the ludicrous implausibility of the connection between the government's asserted interest — that children grow up with their biological parents — and the restriction of marriage to opposite-sex couples.)

Do you believe the drone policy really is: "Before any strike is taken, there must be near certainty that no civilians will be killed or injured"?

That's what Obama said last week, but I don't see how it can possibly be true, and I don't really understand why he would state a policy in terms that are so plainly unbelievable. If that were the standard, how he could use drones at all — let alone carry out hundreds of attacks? And if that's not the standard, why say it's the standard, since (if it's believed) it's encouraging the enemy to defend itself by keeping hostages and other innocents in their midst? If it's not believed — and I think it's on its face unbelievable — it wrecks his credibility.

These questions occurred to me as I listened to the panel discussion on "Fox News Sunday" yesterday, which began with a clip of Obama saying the words that appear in the post title:

[AP reporter JULIE] PACE: [W]hen he said that we were not going to take strikes unless there was a near certainty that civilians would not be killed[:] How can you -- how can you be sure of that?...

[National Journal reporter RON] FOURNIER: ... I think anybody who... has a problem like I do with this drone strategy, still has a problem. And maybe more so, the fact that the president promised that... he was going to be transparent, about how, about why and how we conduct war from a robot in the air blowing people away.... [W]hen the president of the United States says we're going to deal with near certainty, really? How do you come up with near certainty? Is that just a talking point that you say two years ago and then we find out that you can't do it? Let's put some meat on the bones, Mr. President.

[Fox News political analyst BRIT] HUME: It seems to me that they probably had near certainty. What they didn't have was actual certainty. And that's always going to be the case....

So one answer to my questions is: It depends on what the meaning of "near" is.

The drone policy was also questioned because of the way it kills people who could be captured and used for intelligence, which is related to the question of near certainty, because intelligence is needed to get to near certainty. If you keep killing everyone, how do they know whom they're killing? I suspect that after the fact they deem everyone who was there an enemy, at least as far as they can (and they couldn't in the case of the 2 specific hostages). And they don't want the trouble of detainees.

Dick Cheney went on "Meet the Press" yesterday to talk tough, and he was rock solid, unshakable.

Chuck Todd stayed with him a long time. Please read the whole transcript to get the effect I'm describing. I'll excerpt one thing:

CHUCK TODD: Let me go through some of those techniques that were used, Majid Khan, was subjected to involuntary rectal feeding and rectal hydration. It included two bottles of Ensure, later in the same day Majid Khan's lunch tray consisting of hummus, pasta, sauce, nuts and raisins was pureed and rectally infused.... Does that meet the definition of torture?...

DICK CHENEY: --in my mind, I've told you what meets the definition of torture. It's what 19 guys armed with airline tickets and box cutters did to 3,000 Americans on 9/11. What was done here apparently certainly was not one of the techniques that was approved. I believe it was done for medical reasons.

CHUCK TODD: I mean, medical community has said there is no medical...

DICK CHENEY: If you go and look, for example, at Jose Rodriguez book, and he was the guy running the program, he's got a very clear description of how, in fact, the program operated.. that was not something that was done as part of the interrogation program.

CHUCK TODD: But you won't call it torture?

DICK CHENEY: It wasn't torture in terms of it wasn't part of the program.

Is there no medical basis for rectal feeding and hydration? Obviously, the answer to that question does not establish whether it was chosen for other reasons, but if it has no medical purpose — or at least if it couldn't be thought to have a medical purpose — then it must necessarily have been chosen for nonmedical purposes. Here's a Bloomberg article on the subject:

Rectal feeding or hydration, known as proctoclysis, has been performed for centuries. It is rarely done now, though a 1998 report found water or saline given rectally was safe and effective for terminally ill cancer patients.

The first reports, on papyrus going back 3,500 years, show ancient Egyptians used reeds and animal bladders to infuse liquids like wine and milk into the rectum for a variety of ailments, according to a blog post by Eric Aadhaar O’Gorman, the author of “Complete Tubefeeding.” Perhaps the most famous patient was U.S. President James Garfield, who was fed whiskey and broth rectally after being shot since his doctors restricted what he could eat.

From O'Gorman's post (written in 2012, without any attention to the ulterior purpose of torturing, tormenting, or coercing a prisoner):

Rectal feeding does (thankfully) seem finally to have gone out of fashion although I am told that some medical students these days, upon learning of things like James Garfield's ordeals discover all over again that colonic absorption is a very fast way to get drunk. Apparently. Don't try it though, OK?

ADDED: In calling Cheney "rock solid, unshakable," I'm not vouching for the correctness of his position. I am simply observing that he came on the show with a message to deliver, and he stuck to it in a staunch and stalwart manner. Todd had a different template, which he kept trying to impose, and Cheney wouldn't budge.

"A Federal District Court judge on Friday ordered the public disclosure of 28 classified military videotapes showing the forced cell extraction and forced feeding..."

"... of a hunger-striking Guantánamo Bay detainee, rejecting the Obama administration’s arguments that making the videos public would endanger national security."

The dispute over force-feeding has been building since early 2013, when a hunger strike protest broke out across the Guantánamo prison...

In response, President Obama revived his moribund efforts to transfer low-level detainees, which had stagnated, but he also endorsed force-feeding, saying he did not want detainees to die. The procedure involves strapping a detainee into a restraint chair and inserting a tube through his nose, through which a nutritional supplement is poured into his stomach.

Most of the hunger strikers have since resumed eating....

Here's the opinion, from Judge Gladys Kessler, a District of Columbia federal district judge (appointed by Bill Clinton).

"Hobby Lobby makes clear that all persons — human and corporate, citizen and foreigner, resident and alien — enjoy the special religious free exercise protections of the RFRA."

Write lawyers for Guantanamo detainees who want to be able to meet in groups for communal prayer in observance of Ramadan.

Assuming the Religious Freedom Restoration Act applies to the detainees, the question is whether being deprived of communal prayer is a substantial burden on religion and, if so, whether the government has a compelling interest that cannot be served by a less restrictive means.

The linked article makes it seem as though the government is using access to communal prayer as a positive incentive to get prisoners to give up their hunger strike and not because of security needs. If that's so, then it should be easy to posit less restrictive means of deterring hunger striking. Think of incentives that have nothing to do with religion — any punishment or privilege that isn't related to a religious need might suffice.

2 problems with that argument: 1. Maybe access to communal prayer is the only incentive that will work on these particular individuals, who are, after all, far into a process of physically punishing themselves by refusing to eat, and 2. Maybe these individuals see everything in terms of religion, so that any punishment or privilege the government could come up with would also burden their religion.

Charles Krauthammer supports Obama's decision on Bergdahl.

"Had the choice been mine I would have made the same choice... It’s a difficult decision, and I would not attack those who have done otherwise.... These are dangerous militants, but we have long engaged in and all other countries in the West have engaged in hostage swaps where the West always comes out on the short end...."

Drudge cites "LAW PROF" as saying Obama is "The President That Richard Nixon Always Wanted To Be..."

Linking to Jonathan Turley (speaking with Sean Hannity):

SEAN HANNITY: We do have co-equal branches of government, separation of powers. You teach this regularly. You agree with the president politically. For you to say we are at a tipping point constitutionally -- now, I agree with you. What does that mean considering our constitution is our rule of law and they are ignoring it?

JONATHAN TURLEY: Well, unfortunately our system is changing, and it's changing without a debate. Or even a discussion about what we're going to do in the future when we have a three branch system, a tripartite system but one branch is so dominant. What's emerging is an imperial presidency, an uber presidency as I've called it, where the president can act unilaterally. This is only the latest example of that. What's troubling is that we have a system that has been stable precisely because these are limited and shared powers. This president has indicated that he's just not willing to comply with some of those aspects. He told Congress he would go it alone and in our system you're not allowed to go it alone.... Well, I think that the biggest problem we have is that the system itself, if we have a dominant branch, simply begins to shut down in terms of the safeguards. People don't seem to understand that the separation of powers is not about the power of these branches, it's there to protect individual liberty, it's there to protect us from the concentration of power. That's what is occurring here. You know, I've said it before, Barack Obama is really the president Richard Nixon always wanted to be. You know, he's been allowed to act unilaterally in a way that we've fought for decades...

I'm a lawprof too, and I too regularly teach this separation of powers business. And Turley is downplaying the argument for exclusive presidential power over some military and foreign affairs matters. Unlike Turley, I wouldn't say I "agree with the president politically," but I did vote for him in 2008, and when I did, part of my reason was that criticisms of President Bush were distorted by partisanship and that if a Democrat were President and responsible for the military, a more balanced assessment of presidential power would emerge.

And here's the memo (PDF) from NSC Spokesperson Caitlin Hayden explaining the administration's legal position, which reads the statute — Section 1035(b) of the FY 2014 NDAA — not to require 30-day notice to Congress when the Secretary of Defense has determined that notice "could endanger" a captive soldier’s life. You might find that statutory interpretation strained, but without it, the administration would resort to a constitutional argument and say that the notice requirement encroaches on the President's constitutional function of "protecting the lives of Americans abroad and protecting U.S. soldiers." The memo points to the President's signing statement:

“Section 1035 does not... eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.” 

I would say the signing statement disavows any belief in the statutory interpretation propounded by the memo, but the signing statement expresses the constitutional problem that drives statutory interpretation. (And by the way, just last Monday, the U.S. Supreme Court issued a decision that very strongly supports narrowing a statute to avoid getting to a question whether Congress has exceeded its constitutional powers.)

Bergdahl as Obama's worst PR nightmare.

1. I'm surprised, with all the scandals Obama has wriggled his way through and around all these years, that bringing Bergdahl back home has hurt him so badly. I think Obama and his people believed that the Rose Garden announcement of the soldier's homecoming would warm American hearts, cleverly distract us from the VA scandal, and count as a positive step toward his long-delayed goal of closing Guantanamo. Moderate Americans would celebrate (or at least not complain about) the soldier's return. And more leftish Americans would get some satisfaction from the progress on Guantanamo.

2. Obama had just — 3 days before — given a commencement speech at West Point that he must have believed would refocus our attention on his distinctive vision of America's role in the world. He stressed our obligation to follow "international norms and the rule of law," expressed pride in "winding down our war in Afghanistan," and recommitted to closing "Gitmo, because American values and legal traditions do not permit the indefinite detention of people beyond our borders." His people must have believed this dignified oration would set us up nicely to receive the Bergdahl announcement. The speech got an "icy" reception, but the plan to follow up with the Rose Garden announcement remained in place.

3. Obama and his people knew there would be criticism about his violation of the statute that purports to require him to inform Congress in advance of releasing any detainees, but, as I blogged on June 1st, I think they imagined themselves winning this PR spat:

Go ahead. He's daring you. Perhaps part of his motivation for the prisoner trade was a predicted political boost as the President's opponents are distracted into seeming to complain about the return of a hero and tripping all over themselves as they posture about impeachment.

4. The first comment on my post jumped on my use of the word "hero." The Drill SGT said: "There are a lot of questions about how and where he was captured. None of them make him out a hero." I resisted this new material: "I used the word 'hero' precisely to highlight the nature of the response to the complaints, and anything disparaging to this man, like what you're saying, will redound against Obama's opponents." When I read that now, I think: That's exactly how Obama and his people fooled themselves into thinking they'd win this PR game.

5.  Obama's friends in the press worked the angle I had predicted. Joan Walsh over at Salon had a piece titled: "The right’s unhinged Bergdahl hypocrisy: The ultimate way to savage ObamaShould accused deserters face trial by Bill Kristol before being rescued? Understanding the latest wingnut hysteria." It began: "Of course Republicans are going to compare the prisoner swap that won the release of Army Sgt. Bowe Bergdahl to Benghazi. They both start with B." Actually, I think a lot of us, at that point, had not quite absorbed the name "Bergdahl" and were mentally filing it under that name that looks like "Benghazi." That was a random tough break for Obama — making it more likely that we'll hypothesize screwups and coverups — but it was a deliberate choice to send Susan Rice — who famously propagandized about Benghazi on the Sunday shows — onto a Sunday show to do the propaganda on Bergdahl. George Stephanopoulos gave her a supportive forum.

6. CNN's Jake Tapper broke ranks with the liberal media: "Fellow soldiers call Bowe Bergdahl a deserter, not a hero." And consider that that it was CNN's Jim Clancy who uttered the words "pretty icy" about West Point's reaction to Obama's commencement speech. CNN has problems of its own, and wouldn't it be funny if it could solve them by eschewing the role of PR outlet for Obama and doing some tough journalism? I suspect the ratings (and web traffic) are showing that this "pretty icy"/"deserter, not a hero" material is exactly what CNN desperately needs for its own survival. If so, what a tipping point.

7. The Rose Garden performance gets worse and worse in retrospect as we look closely at a man who was supposed to be scenery for the President: Bergdahl's father. Did Obama's people just assume the parents would be humble, grateful ordinary Americans? Should we give Obama some credit for not locking down the PR?

8. What Joan Walsh called "the latest wingnut hysteria" is seeping out to Democrats. Yesterday, The Weekly Standard found that "Senate Democrats Go AWOL: They had Obama's back on the Bergdahl/Taliban trade. Now they're walking away." Lots of Senators were queried, and only Harry Reid took Obama's side. Everybody else seemed to need to learn more about it before they could express an opinion.

9. This morning, Obama's PR nightmare includes Hillary Clinton attempting to extract herself:  "While still secretary of state, Hillary Clinton was skeptical of early plans to trade five Guantanamo prisoners for Sgt. Bowe Bergdahl, former officials involved in the process told CNN on Tuesday. Clinton pushed for a much tougher deal... Clinton did not trust the Haqqani network holding Bergdahl, they said, and she was wary that the trade would lead to peace with the Taliban."

10. I see that Talking Points Memo is still attempting the old "Obama's in trouble, we need to help" routine: "Conservatives Go From Zero To Impeachment In Record Time On Bergdahl." Whatever you might say about Obama, those Republicans are crazy.

"Trading Private Bergdahl."

That's from Mad Magazine.

IN THE COMMENTS: Meade said:

If I've lost Mad, I've lost Middle America. 

Obama: "When the President does it, that means it is not illegal."

I mean... Nixon:



But Obama could say it — right? — about this:

The Obama administration’s failure to notify Congress of the release of five Guantanamo Bay detainees ahead of his exchanging them for American soldier Bowe Bergdahl is a direct violation of the law, according to CNN legal analyst Jeffrey Toobin.

“I think he clearly broke the law,” Toobin said on Monday, adding that the president’s signing statement in which he called the law unconstitutional does not automatically make it so. “Certainly this is an example of a signing statement where the president is taking power for himself that the law didn’t give him — he’s explicitly contradicting it.”

I guess by "law," Toobin means statute. The Constitution is also law, and the President's view of the Constitution is that the statute in question encroaches on his constitutional power and is therefore a nullity. The President may be claiming power that the statutory law didn't give him, but he's not taking power if it was given by the Constitution, and there's nothing illegal about contradicting a nullity.

"The sense of pride expressed by officials of the Obama administration at the release of Army Sgt. Bowe Bergdahl is not shared by many of those who served with him..."

"... veterans and soldiers who call him a deserter whose 'selfish act' ended up costing the lives of better men."

A reporter asked Defense Secretary Chuck Hagel Sunday whether Bergdahl had left his post without permission or deserted -- and, if so, whether he would be punished. Hagel didn't answer directly. "Our first priority is assuring his well-being and his health and getting him reunited with his family," he said. "Other circumstances that may develop and questions, those will be dealt with later."

How conspicuously evasive can you get? Other circumstances and questions have developed. That's why the question was asked.

Another senior Defense official said Bergdahl will not likely face any punishment. "Five years is enough," he told CNN on condition of anonymity.

One translation of that is: We have determined never to air the facts of this case.