Is Bowe Bergdahl worth five Taliban prisoners?

Why critics are mistaken in attacking the Taliban prisoner exchange.

Sgt Bowe Bergdahl was freed in a swap for five Taliban detainees [AP]

Ever since US President Barack Obama announced that five Taliban prisoners in Guantanamo had been freed in Qatar in exchange for Sgt Bowe Bergdahl, the sole US prisoner of war in Afghanistan, lawmakers, with support from large parts of the media, have been waging a sustained attack on the Obama administration. They have been accusing both the president and defence secretary Chuck Hagel of recklessness, incompetence and breaking the law in relation to the exchange.

The critics – almost entirely Republicans – suggested that Sgt Bergdahl, who was captured by the Taliban-affiliated Haqqani network five years ago, should have been abandoned, because of claims that he was a deserter. Whether or not there is any truth to these claims is something that the army will establish in due course, through recognised channels, and is not a matter to be dealt with by lawmakers and media pundits acting as judge and jury.

Ironically, the extra-judicial hounding of Bergdahl is a sign of how far standards have slipped in the US since the 9/11 attacks, as the only other place where men are routinely judged and condemned without having been charged or tried is Guantanamo.

Breaking the law?

Army General Martin Dempsey, chairman of the Joint Chiefs of Staff, addressed these issues shortly after the prisoner exchange had taken place. “Like any American, he is innocent until proven guilty,” Gen. Dempsey explained, adding, “Our army’s leaders will not look away from misconduct if it occurred.”

At an acrimonious congressional hearing about the prisoner swap before the House Armed Services Committee, Hagel defended the decision to secure Bergdahl’s release.

“America does not leave its soldiers behind,” he said, adding, “We made the right decision, and we did it for the right reasons – to bring home one of our own people.”

People and Power- Back to Guantanamo

The hearing also focused on lawmakers’ claims that the Obama administration had broken the law by failing to notify Congress 30 days before any planned release of prisoners, as stipulated in passages relating to prisoner releases that have been inserted into the annual National Defense Authorization Acts for the last few years. This is legislation that, it should be noted, has only one purpose – to try to prevent Obama from releasing prisoners from Guantanamo, for reasons that have more to do with political manoeuvring than with national security.

As soon as news of the prisoner swap was announced, the administration explained that the 30-day notice was impractical in this case. Hagel said that the prisoner exchange was swiftly undertaken after intelligence suggested Bergdahl’s “safety and health were both in jeopardy and in particular his health was deteriorating”.

At the congressional hearing, Hagel elaborated, describing “an extraordinary process of secret back-channel negotiations brokered by Qatar”, which culminated in an agreement on May 12, that the Qataris would take custody of the Taliban prisoners. However, Hagel added: “We did not know until the moment Sergeant Bergdahl was handed over safely to US special operations forces that the Taliban would hold up their end of the deal. So it wasn’t until we recovered Bergdahl on May 31 that we moved ahead with the transfer of the five Guantanamo detainees.”

Hagel also stated, “The exchange needed to take place quickly, efficiently and quietly”, pointing out that the “exceptional circumstances” of the prisoner swap provided justification for not notifying Congress.

In addition, writing for Slate, Peter M Slane noted that “presidential control of enemy detainees is what the Supreme Court has called a ‘fundamental and accepted … incident to war'” and that it “therefore should be deemed a form of authority granted to the president by the 2001 Authorization for the Use of Military Force [AUMF] in Afghanistan”, the legislation passed by Congress immediately after 9/11, allowing the president to pursue those he regarded as responsible for the attacks.

The ‘worst of the worst’?

As for the five men released (who will be held in Qatar for a year and prevented from travelling abroad), critics of the Obama administration have made absurd claims about them from the moment that news of the prisoner release was announced. Senator John McCain, for example, described them as “hardened terrorists who have the blood of Americans and countless Afghans on their hands”.

Fault Lines – Life after Guantanamo

McCain’s statement was wrong on almost all counts. Firstly, the Taliban, though widely despised, had been the government of Afghanistan and not a terrorist organisation, and, in addition, there is no evidence that any of the five men have the “blood of Americans” on their hands.

Three of the five held positions as officials and two others were Taliban military commanders – and have been accused of war crimes relating to the killing of Hazara civilians prior to the US-led invasion.

The fault for not dealing with the two appropriately lies with the US. If the US was serious about wanting to deal with their alleged crimes, it should have delivered the men to the International Criminal Court (ICC) in the Hague – although the US, of course, has refused to sign up to the ICC.

Not only are the claims about the men generally exaggerated, but, in addition, their release only foreshadows what is to come in the not too distant future, as the war in Afghanistan winds down, and the justification for holding Taliban prisoners under the AUMF evaporates.

The critics – wedded to dangerous notions of permanent war and a permanent prison at Guantanamo – are unwilling to recognise that, as war winds down, negotiations must take place between the various parties involved. As Al Jazeera America noted, Bergdahl’s release came “just days after Obama outlined a plan to withdraw all but 9,800 US troops from Afghanistan by the end of the year and the rest by 2016, ending more than a decade of US military engagement”.

Although a US official described the timing as coincidental, it is difficult not to conclude that the exchange also feeds into the more general need for negotiations to take place between the US and the Taliban.

Most importantly, however, the planned withdrawal of troops, and its significance for the ability to detain Taliban prisoners, was addressed by Jack Goldsmith, formerly a legal adviser to the Bush administration, in an article for Lawfare. Goldsmith wrote: “It is likely that the US would be required, as a matter of international law, to release them shortly after the end of 2014, when US combat operations cease in Afghanistan. The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan.”

What this means for the prisoners still held at Guantanamo has not been explained, but it is surely noteworthy that, of the 149 men still held, the majority are accused primarily of involvement with the Taliban – either as soldiers or in a supporting role. They are not accused, in any serious manner, of involvement with al-Qaeda, beyond, in some cases, having attended a military training camp where Osama bin Laden occasionally visited to make a speech.

As a result, the main conclusion of this whole sorry episode of cynical hysteria seems to be that, despite the bluster, time is running out for the US to maintain that it has the right to continue to hold prisoners at Guantanamo indefinitely, and that almost all the men still held – and not just the 78 who have already been approved for release – will need to be freed in the not too distant future.

Andy Worthington is a freelance investigative journalist. He has been researching and writing about Guantanamo since 2006, and has worked with the United Nations, WikiLeaks, Reprieve and Cageprisoners. He is the co-founder of the Close Guantanamo campaign, and authored the book The Guantanamo Files.

Follow him on Twitter: @GuantanamoAndy