A Problematic POW, Ctd

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Fred Kaplan clears up a few misconceptions about this weekend’s exchange of five captured Taliban leaders for Army Sgt. Bowe Bergdahl:

First, while Obama and his diplomats made the deal on their own (in line with his powers as commander-in-chief), it’s not true that he left Congress out of the picture. He briefed a small group of senators in January 2012, when a deal first seemed in the offing. Sen. John McCain reportedly threw a fit, objecting that the detainees to be released had killed American soldiers, but after talking with John Kerry (at the time, still a senator and a friend), came around to the idea. (This may be why McCain, though displeased with the detainees’ release, is not raising his usual hell in public appearances now.)

Second, it’s not the case—at least if things work out as planned—that the five detainees, some of whom were high-level Taliban officers in their younger days, will go back and rejoin the fight. The deal requires them to remain in Qatar for one year; after that, Americans and Qataris will continue to monitor them—though it’s not yet clear what that means; in the coming days, someone should clarify things.

“There’s one more potential bit of good news,” he adds:

This whole exercise has demonstrated that the Taliban’s diplomatic office in Qatar does have genuine links to the Taliban high command. (A few years ago, when fledgling peace talks sputtered and then failed, many concluded that it was a freelance operation unworthy of attention.) And the fact that the exchange came off with clockwork precision (see the Wall Street Journal’s fascinating account of how it happened) suggests that deals with the Taliban are possible, and that a deal signed can be delivered.

Furthermore, Michael Crowley points out that Obama did not, strictly speaking, “negotiate with terrorists”:

[H]owever nasty the Taliban may be, it’s not really a “terrorist” enemy as we commonly understand the word. The group is not on the State Department’s official list of terrorist organizations and has has long been a battlefield enemy in the ground war for control of Afghanistan. It is not plotting to, say, hijack American airplanes—even if it does have sympathies with people who are. Ditto the Taliban leaders released over the weekend. They are members of a savage and deplorable organization. But unlike, say, Khalid Sheikh Mohammad, they have no history of plotting attacks on the U.S. homeland. Given all that, the real debate isn’t whether Obama negotiated with terrorists—he didn’t. The mystery lies in the particulars of the deal.

Shmuel Rosner compares the swap to the deals Israel makes on a regular basis, sometimes trading hundreds of prisoners for one captured soldier:

So the U.S. got a captured soldier back in exchange for five Afghan inmates. Big deal. Five-for-one is a deal Israel would take in a heartbeat. But there’s truth to the claim that such deals increase the appetite of a terrorist organization in two ways. First, they encourage terrorists to adopt a policy of an abduction of soldiers in the hope of getting more inmates out. Second, they allow terrorists to worry less about being captured by the U.S., since they can hope for a later release.

Israel had been attempting for years to try to resist these exchanges. In 2008, following a heavily criticized deal in which Israel let murderers go in exchange for body bags, then Defense Minister Ehud Barak appointed a special committee, headed by former High Court Chief Justice Meir Shamgar, to make recommendations to the Israeli government on future exchange deals. The Shamgar committee pushed to put limits on prisoner swaps, for the reasons above. But a committee is little match for a mourning family.

But Elliott Abrams identifies a big difference between the US and Israel that, in his view, made this deal unwise:

The trade for Sgt. Bergdahl has given terrorists a real incentive to capture and trade American servicemen and women– and they are very vulnerable. Israeli troops are in Israel, where they are well protected. Occasionally someone tunnels under the border or raids over it, but not often; and Israeli troops in the West Bank take very special care to prevent kidnappings. Americans are in about 150 countries and there are thousands in places where they roam without much protection: 11,000 in Kuwait, 9500 in the UK, 40,000 in Germany. All three countries have significant extremist activity that keeps their police very busy.

Today they are at greater risk because they are more valuable to terrorists. That is a cost of this trade that comparisons to Israel do not correctly measure.

The deal also makes Benjamin Wittes queasy:

John Bellinger is correct that “it is likely that the U.S. would be required, as a matter of international law, to release [the Taliban detainees] shortly after the end of 2014, when U.S. combat operations cease in Afghanistan.” We are, after all, winding down this conflict, and the authority to detain Taliban forces—as opposed to Al Qaeda forces—won’t last that much longer than the end of combat. So what we may have traded here is one POW deserter (assuming that’s what Bergdahl was, for a moment) in exchange for hastening the release of five Taliban by an indeterminate number of months.

Was it the right move? I don’t know. I certainly don’t think, as Marty Lederman put it on Saturday, that it is “truly wonderful news.” Ask me in a couple of years whether it was a good idea—when we know if any constructive dialog with the Taliban developed out of these contacts, when we know how the US draw-down in Afghanistan went, when we know whether and how the released detainees reengaged with the fight, and when we know exactly what the circumstances of Bergdahl’s disappearance really were. The people who did this deal didn’t have the luxury of remaining agnostic about its merits that long. I will not criticize them.

Keating doubts that the five baddies we released to Qatar will ever pose much threat to Americans:

The reason that the detainee recidivism rates have been dropping is likely not because Guantanamo has become so much more effective at rehabilitating detainees. It likely has more to do with the fact that as the U.S. has drawn down its troop presence in Iraq and Afghanistan, there are fewer opportunities to engage in hostilities against Americans in these countries. If all goes according to plan, by the time these five can get back to Afghanistan, they won’t pose much of a threat to U.S. troops because there won’t be that many U.S. troops there for them to fight.

Opponents of the deal are using Nathan Bradley Bethea’s piece from yesterday, which alleged that Bergdahl had deserted his unit, to make their case, but Bethea isn’t having it:


Zack Beauchamp suspects that Republicans trying to make political hay out of this exchange are probably not willing to make the case that we should have left a POW to die in Taliban custody:

Bethea’s distinction between Bergdahl’s disappearance and his release is significant. It’s one thing to think, as some veterans appear to, that Bergdahl should be now be tried by an American court for desertion (that appears unlikely, according to administration statements). It’s a different thing entirely to believe an American soldier should remain in the Taliban’s clutches indefinitely.

The problem with the emerging Republican position is that it implicitly forces the GOP to defend the latter; that Bergdahl should have been left. No amount of speculation about hypothetical future kidnappings or quibbling over legal niceties are likely, in political terms, to overcome the emotionally powerful support for captured veterans’ freedom. And after the initial wave of press coverage subsides, Republican leaders will probably get that. Bergdahl’s release will not remain a partisan flashpoint for very long.

Bing West advises the administration to manage the controversy by letting the Army court-martial Bergdahl:

By any reckoning, the release of five dedicated Taliban terrorists was a high price to pay for the return of a single American captive. It will be a price worth paying only if the Army is allowed to live up to its own high standards. Left to its own procedures, the Army as an institution will proceed with a thorough judicial investigation. Most probably this will result in a court-martial. The evidence is too compelling to be ignored. If there is a finding of guilt, a judge may mitigate the sentence.

But not to proceed with a judicial course would harm the integrity of the Army. There is a deep anger throughout the ranks about Bergdahl’s behavior. The administration would be well advised not have anything more to do with Bergdahl. Let the Army system work. The Army can be trusted to follow the correct course.

General Martin E. Dempsey statement makes clear that Bergdahl will be investigated:

In response to those of you interested in my personal judgments about the recovery of SGT Bowe Bergdahl, the questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity. This was likely the last, best opportunity to free him. As for the circumstances of his capture, when he is able to provide them, we’ll learn the facts. Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family. Finally, I want to thank those who for almost five years worked to find him, prepared to rescue him, and ultimately put themselves at risk to recover him.