Despite Republican criticism and a planned congressional hearing, President Obama’s decision to trade five Taliban fighters for Army Sgt. Bowe Bergdahl was not a departure from history, U.S. law, or his long-delayed promises to end the wars in Iraq and Afghanistan and close the military prison at Guantanamo Bay.
None of the men involved in the swap are members of al-Qaida. What’s more, the five detainees – who spent more than a decade at Guantanamo – were transferred under heavy restrictions that will prevent them from rejoining the battlefield, unlike hundreds of Guantanamo prisoners who were released by former President George W. Bush.
In fact, Bush released dozens of men held in secret CIA prisons. Yet prisoner swaps, even lop-sided ones, are nothing new. “[Exchanges] have long been viewed as a very human way of effectuating the goals of international law, which is to make war as humane as possible,” Steve Vladeck, a constitutional law professor at American University said in an interview. “What’s unique about this case is the fact that it’s rare to have a prisoner transfer in this sort of asymmetrical conflict.” The U.S. may be fighting enemies it views as different from those in past wars, but international law is still the same.
Prisoner exchanges for individual soldiers are not uncommon among heavily militarized U.S. allies. In 2011, Israel traded 1,027 Palestinian prisoners for a single soldier, Gilad Shalit, who was kept captive in the Gaza Strip for five years. Thousands of prisoners have been released by Israel to secure prisoner exchanges over the past three decades. And the release of prisoners convicted of terrorism was a cornerstone of the peace process in Northern Ireland.
The five former prisoners, who were once militant fighters with close ties to Taliban leaders, may have been nearing the end of their stay anyway. “There is an argument that our authority to hold them was going to expire at the end of the year,” when American forces end combat operations in Afghanistan, said Vladeck, who is co-editor-in-chief of the Just Security blog.
Though questions have been raised about how Bergdahl came to be in the hands of Afghan militants, a core U.S. commitment to “leave no soldier on the battlefield” remained unshakable. White House chief of staff Denis McDonough pointed out on Monday that officials had worked for years to secure the release of Bergdahl, the only U.S. service member who was still held in captivity after a decade of war.
As for the group of men released in exchange for Bergdahl, U.S. government records released by Wikileaks show that the military considered them to be “high risk” prisoners who would pose a threat to U.S. interests and allies. But those designations are difficult to independently assess. More than 80% of the men captured and brought to Guantanamo were later proven to have been farmers, shopkeepers, and other bystanders who were often sold for bounties rather than hardened militant fighters. Even today, more than 70 of the 149 prisoners still at Guantanamo have been cleared for release. Just six – those directly involved with the Sept. 11, 2001 attacks on U.S. soil and a strike a year earlier against the USS Cole – are facing charges in military commissions.
Shortly after the 2001 attacks, Congress passed an Authorization for the Use of Military Force against al-Qaida, led by Osama bin Laden, and the organizations – chiefly the Taliban government of Afghanistan – which provided it with shelter and support. The U.S. military and allies invaded Afghanistan weeks later. More than 13 years later, bin Laden is dead, U.S troops remain in Afghanistan and the Taliban is resurgent as a political and military force.
As for those remaining at Guantanamo, Congress has used its power to make it virtually impossible to let detainees out – even those cleared to leave. By placing onerous restrictions on transfers into the National Defense Authorization Act, progress on closing Guantanamo Bay came to a standstill. When Obama signed the NDAA late last year, he included a signing statement that argued he should not be bound by the notification requirement because it was an unconstitutional check on executive power.
For some, the fight over Guantanamo seems to have unmasked opposing views of executive power – Obama’s exercise of it and Congress’s attempt to restrain it. But the true motivation behind the Guantanamo dispute is mostly about an attempt by Republicans to shield the Bush presidency and legacy from being held accountable for the torture and inhumane acts it perpetrated in the name of security. That is why trials for detainees in federal courts have been blocked and why transfers out of Guantanamo have been all but shut down.
With little to show for their partisan attacks on everything from health insurance to the deaths of four Americans in Libya, Republicans now hope to tar the freedom of a single American by suggesting it may have endangered the rest of the country. Such a claim doesn’t withstand scrutiny when it comes to the practices of allies, and doesn’t erase the practices of a Republican president who released hundreds of detainees – including some who actually returned to fight U.S. troops. It does, however, draw renewed attention to a detention facility that Obama himself described as a strain on America that needs to be washed away.