The following by SMU Law Professor Chris Jenks first appeared in the June 8, 2014, edition of USA Today. Jenks is a former Army JAG who served as chief of the Army's International Law Branch.
June 10, 2014
As more information surfaces concerning Army Sergeant Bowe Bergdahl's 2009 disappearance from his unit in Afghanistan, the greater the backlash for trading five high value Taliban detainees to facilitate his return. Such criticism misunderstands which part of the trade was the leverage and which was the benefit.
The White House didn't trade Taliban detainees so much to recover Bergdahl, but to rid itself of the Taliban detainees. Securing Bergdahl's release keeps the faith with the military. But the swap was not the end but the political means — and cover — to take a small, but significant step in reducing the size of the detainee population in Guantanamo Bay proving to be the greatest impediment to its closure.
In so doing, the White House also ducked a looming question for which there no good answers — what to do in 2015 with Taliban members detained in a war the president says ended.
There are two categories of detainees at Guantanamo: those already approved for release and those viewed as too dangerous to transfer. Of the latter category, a small number are facing trial by military commission. But the U.S. lacks sufficient, admissible evidence to prosecute most of them. It is this subset which, given current U.S. law prohibiting moving detainees to jails in the U.S., poses the largest obstacle to closing Guantanamo Bay. The majority are members of al-Qaeda. A much smaller number are members of the Taliban, and they pose an additional challenge, particularly for a president purporting to embrace the rule of law — the U.S. will lack a law of war basis for their continued detention beyond 2014.
Unlike al-Qaeda, which in varying forms and fashions is engaging in armed conflict in several places in the world, the Taliban are only fighting in Afghanistan and northwest Pakistan. In his 2014 State of the Union address, President Obama claimed the war in Afghanistan was "ending," "finally be over," "finally coming to an end," and "draw(ing) to a close."
The end of the U.S.' active involvement in the war in Afghanistan will trigger, or should anyway, the release of enemy belligerents captured during the conflict.
In terms of the al-Qaeda detainees, the United States will still be able to credibly claim to be engaged in armed conflict (or perhaps a series of conflicts) with al-Qaeda in the other parts of the world: al-Qaeda in the Arabian Peninsula (Yemen) and al-Qaeda in Islamic Magreb (North Africa) to name just two groups and places.
But no such argument exists for the Taliban. Come Jan. 1, 2015, if there are any Taliban members remaining at Guantanamo, the White House would be hard pressed to justify their continued detention pursuant to a war the president says the U.S. is no longer fighting. Outright release would be a nonstarter and any chance of transferring the Taliban detainees to Afghanistan eroded following their release of 65 detainees in February, in violation of an agreement with the U.S. to prosecute.
Enter Bergdahl. Relying on claims of Bergdahl's failing health, the White House approved and conducted the trade without notifying Congress.
On the political good-to-bad scale, the current uproar is not good, and the administration made it worse with the Rose Garden press conference with Bergdahl's parents and Susan Rice's Sunday morning talk show claims of Bergdahl serving with "honor and distinction."
But the status quo is still less bad than where the White House was heading in early January: criticism whether the Taliban detainees were released or not. At least now the president can deflect criticism by invoking the sacred rule that "we don't leave our men and women in uniform behind."
Congress has scheduled hearings to discuss what Republicans and even some Democrats view as presidential over reaching. The Army will now grapple with what to do with Bergdahl, including the possibility of criminal prosecution.
While we don't know the outcome of the hearings, or what the Army will do with Bergdahl, one thing we do know is that the White House has accomplished what it's been trying unsuccessfully to do since January 2009 — reduce the size of the detainee population at Guantanamo Bay which are preventing its closure.
That may well have been the point all along.
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