Group items tagged

Again, these are the findings of the Army's investigation into Sergeant Bergdahl's disappearance; they are not the apologies or fantasies of his legal team, Marines turned anti-war peaceniks like myself, or Obama fawning conspirators. The details behind these facts are contained in the Army's report, authored by Major General Kenneth Dahl, which has not been publically released, but hopefully will be made available to the public after Sergeant Bergdahl's preliminary hearing next month or, if the desertion and misbehavior charges are pursued, during his court martial. Just what events Sergeant Bergdahl witnessed that would compel him to risk his life, traveling unarmed through enemy controlled territory, to provide information to an American general, are not presently known. We do know that the unit Sergeant Bergdahl belonged to underwent serious disciplinary actions both before and after Sergeant Bergdahl's capture, that several of his unit's leaders were fired and replaced both prior to and subsequent to his capture, and, from communications between Sergeant Bergdahl and his family prior to his capture, Sergeant Bergdahl was sickened and distraught over the actions of his unit, including its possible complicity in the death of an Afghan child. It is quite possible Sergeant Bergdahl left his unit to report a war crime(s) or other serious crime(s) committed by American forces. He may have been trying to report a failure of his immediate leadership or it may have been something, in hindsight, that we would now consider trivial. Such an action on Sergeant Bergdahl's part would help to explain why his former platoon mates, quite possibly the very men whom Sergeant Bergdahl left to report on, have been so forceful in their condemnation of him, so determined not to forgive him for his disappearance, and so adamant in their denial to show compassion for his suffering while a prisoner of war.

This knowledge may explain why the Taliban believed Sergeant Bergdahl had fallen behind on a patrol rather than deserted. If he truly was deserting, than Sergeant Bergdahl most likely would have told the Taliban disparaging information about US forces in an attempt to harvest friendship and avoid torture, but if he was on a personal mission to report wrongdoing, than he certainly would not relate such information to the enemy. This may explain why Sergeant Bergdahl told his captors a lie rather than disclose his voluntary departure from the platoon outpost. This would also justify why Sergeant Bergdahl left his base without his weapon or equipment. Before his departure from his outpost, Sergeant Bergdahl asked his team leader what would happen if a soldier left the base, without permission, with his weapon and other issued gear. Sergeant Bergdahl's team leader replied that the soldier would get in trouble. Understanding Sergeant Bergdahl as not deserting, but trying to serve the Army by reporting wrongdoing to another base would explain why he chose not to carry his weapon and issued gear off of the outpost. Sergeant Bergdahl was not planning on deserting, i.e. quitting the army and the war, and he did not want to get in trouble for taking his weapon and issued gear with him on his unauthorized mission.

This possible exposure to senior leaders, and ultimately the media and American public, of civilian deaths or other offenses would also account for the non-disclosure agreement Sergeant Bergdahl's unit was forced to sign after his disappearance. Non-disclosure agreements may be common in the civilian world and do exist in military fields such as special operations and intelligence, but for regular infantry units they are rare. Sergeant Bergdahl's capture by the enemy, possibly while en-route to reveal war crimes or other wrongdoings, would certainly be the type of event an embarrassed chain of command would attempt to hide. Such a cover up would certainly not be unprecedented in American military history.Similar to the assertions made by many politicians, pundits and former soldiers that Sergeant Bergdahl deserted because, to paraphrase, he hated America and wanted to join the Taliban, the notion that he cooperated and assisted the Taliban while a prisoner of war has also been debunked by the Army's investigation. We know that Sergeant Bergdahl resisted his captors throughout his five years as a prisoner of war. His dozen escape attempts, with full knowledge of the risks involved in recapture, are in keeping with the Code of Conduct all American service members are required to abide by during captivity by the enemy.

In his own words, Sergeant Bergdahl's description of his treatment reveals a ghastly and barbaric five years of non-stop isolation, exposure, malnutrition, dehydration, and physical and psychological torture. Among other reasons, his survival must be attested to an unshakeable moral fortitude and inner strength. The same inherent qualities that led him to seek out an American general to report "disturbing circumstances" could well be the same mental, emotional and spiritual strengths that kept him alive through half a decade of brutal shackling, caging, and torture. It is my understanding the US military's prisoner of war and survival training instructors are studying Sergeant Bergdahl's experience in order to better train American service members to endure future experiences as prisoners of war. Susan Rice, President Obama's National Security Advisor, was roundly lampooned and criticized last year for stating that Sergeant Bergdahl "served with honor and distinction". It is only the most callous and politically craven among us who, now understanding the torture Sergeant Bergdahl endured, his resistance to the enemy that held him prisoner, and his adherence to the US military's Code of Conduct for five years in horrific conditions, would argue that he did not serve with honor and distinction.

The Prosecutor proceeds in 4 phases within any preliminary examination: (1) an initial assessment to analyze the seriousness of information received; (2) a jurisdictional analysis – the formal commencement of an examination involving “a thorough factual and legal assessment” of whether there is “a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court;” (3) an admissibility determination – assessing whether the gravity of the crimes or prospect of national investigations and prosecutions preclude the need for the ICC to proceed ; (4) prudential considerations — determining whether an investigation would serve the “interests of justice.” It appears that the examination of U.S. detention operations has reached the third phase and crossed over the important threshold of a finding that there is a reasonable basis to believe U.S. forces committed war crimes within the jurisdiction of the Court. Heller posited that some aspects of the Prosecutor’s Afghanistan examination had already reached this stage in 2013. The 2014 report provides further corroboration specifically with respect to U.S. detention practices. For example, paragraph 96 of the 2014 report states that the Office of the Prosecutor is now “analysing the relevance and genuineness of national proceedings by the competent national authorities for the alleged conduct described above as well as the gravity of the alleged crimes”—clearly a phase three inquiry. That said, paragraph 96 also states that the Office is “continuing to assess the seriousness and reliability of such allegations”—which sounds like phase two and even phase one.

95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence. In addition, there is information available that interrogators allegedly committed abuses that were outside the scope of any approved techniques, such as severe beating, especially beating on the soles of the feet, suspension by the wrists, and threats to shoot or kill. 96. While continuing to assess the seriousness and reliability of such allegations, the Office is analysing the relevance and genuineness of national proceedings by the competent national authorities for the alleged conduct described above as well as the gravity of the alleged crimes.

The OTP is considering whether the war crimes of cruel treatment, torture or outrages upon personal dignity were committed by U.S. forces. Article 8 of the ICC statute places something of a qualification on the jurisdiction of the Court over war crimes. It states that the Court shall have jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” In 2013, the Prosecutor’s annual report stated that the Office “continues to seek information to determine whether there is any reasonable basis to believe any such alleged acts, which could amount to torture or humiliating and degrading treatment, may have been committed as part of a policy.” That reference to the “as a part of policy” qualification does not appear in the 2014 report. And, on the contrary, the 2014 report highlights elements that indicate the existence of a policy such as the Presidential Directive of 7 February 2002 on the determination of POW status and the senior US commanders’ approval of interrogation techniques.

Will bilateral agreements between the US and Afghanistan preclude the ICC from investigating or prosecuting “U.S. persons”? One final question that might arise from these proceedings is the legal viability of the bilateral agreement between the United States and Afghanistan regarding the surrender of persons to the International Criminal Court (full text).  Since the case arises out of Afghanistan’s status under the ICC treaty, the United States might try to claim that the bilateral agreement provides US nationals and employees immunity for actions that took place in Afghanistan. I have briefly discussed the legal viability of such article 98 agreements in an  earlier post at Just Security.

Regin has been used to spy on telecom providers, financial institutions, energy companies, airlines, research institutes and the hospitality industry, and on European Union officials. The 14 countries found to have been penetrated include Russia, Malaysia, Afghanistan, and Fiji. Even though the trail is hot now, security experts say that Regin is still out there committing wholesale espionage. That’s because parts of it like QWERTY help mask other components. Like any good spy, it’s constantly changing disguises.