The Bergdahl Swap and All Its Myths

The Obama administration has caught a bit of heat for the release of Sgt. Bowe Bergdahl from Taliban captivity, in exchange for transferring five senior Taliban detainees.   In an attempt to portray criticism of the transfer as politically motivated, President Obama recently complained that Sgt. Bergdahl is not a political football.  However, even several Democrat media figures and lawmakers have criticized the deal.  I want to take a little time to quash a few of the myths beings circulated by the administration and several liberal and mainstream media outlets.

The “Guantánamo Five” Not Really  “the Hardest and Toughest of All”

Senator John McCain referred to the five released senior Taliban members – Khairullah Said Wali Khairkhwa, Abdug Haq Wasiq, Mullah Noorullah Noori, Mullah Mohammad Fazel, and Mohammad Nabi Omari – as “the hardest and toughest of all.”  Several liberal commentators took exception to that phrase and conservatives characterizations of the “Taliban Five” in general.  There’s a strong incentive among supporters of the administration to portray these five men as mid-level Taliban leaders who pose a minimal or no threat. 

Writing for liberal Salon.com, Jean MacKenzie argued, “The five men, who are now in Qatar and barred from traveling for a year, do not really live up to their monster billing.”  MacKenzie claimed that Khairkhwa was merely a “moderate.”  She believes that simply because Noori and Fazl negotiated with Northern Alliance General Dostum in November 2001, they were not or are not a threat.  The only reason Noori and Fazl negotiated with Dostum was because they were completely and utterly defeated by U.S. and Coalition Forces.  They were not moderates, but were merely trying to save their own skins.   

Contrary to MacKenzie’s ramblings, these are some pretty bad dudes.  Khairkhwa, a founder of the Taliban in 1994 and former Taliban interior minister, was no moderate.  According to his Guantánamo case file, obtained by the Washington Post, he was a “hard-liner in his support of the Taliban philosophy” and “was known to have close ties to Osama bin Laden.”

Wasiq was a deputy chief of intelligence for the Taliban.  According to his case file, “he utilized his office to support al Qaeda” and “was central to the Taliban’s effort to form alliances with other Islamic fundamentalist groups.”  Omari “was a member of a joint al-Qaeda-Taliban cell in eastern Khost province and has ties to the Haqqani network.” 

Fazl was a senior military commander for the Taliban in the 1990s who “supervised the killing of thousands of Shiite Muslims near Kabul between 1998 and 2001.”  Khwaja Gul Ahmad, an Afghan who lived in a village destroyed by Fazl in the late 1990s, told the Wall Street Journal, “If he is released, he will burn our houses again because he doesn’t shake hands with the government.”  

Noori was a Taliban provincial governor who was “also suspected of being involved in the Shiite massacre.”  Both Noori and Fazl were present at the 2001 prison riot that killed CIA operative Johnny Michael Spann

There is little doubt that the Taliban Five are hard-line commanders who espouse a radical, Islamist agenda and very likely have American blood on their hands.   

Despite evidence to the contrary, Eugene Robinson appeared on MSNBC’s Morning Joe and argued that the released Taliban members’ impact on the war will likely be “negligible.”  Robinson made air quotes when referring to the Taliban Five as “senior Taliban officials."  Host Joe Scarborough was having none of it, countering, “I think that’s ridiculous, Gene.  I cannot sit back and let you say on our show that the release of five of the most important Taliban leaders is going to be negligible at this stage of the conflict.”  Robinson incredulously replied, “How can you say they’re going to move back into the command of the Taliban?” 

It looks as if Robinson has never heard the story of Mullah Zakir.  Zakir was held at Guantánamo until 2007 and classified as a “medium-level” threat by the Guantánamo authorities (the Taliban Five, on the other hand, were all classified as high-level threats).  Upon Zakir’s release in 2007, he rejoined the Taliban and was the “main military commander until stepping down, for health reasons, early in 2014.” 

Kevin Sieff noted in the Washington Post that “lower-ranking Taliban commanders, released from the Bagram prison by the Afghan government over the past year, have already returned to the battlefield.” 

Already, according to NBC News, Noorullah Noori promised to “go to Afghanistan and fight American forces there.”  I don’t think the Taliban Five will encounter too many problems “moving back into the command of the Taliban.”

Presidential hopeful Hillary Clinton also argued that the “released Gitmo detainees are not a threat to the United States.”  Perennial blowhard Ed Schultz brushed away concerns about the released Taliban members: “I think what the Republicans need to do is give us an update on the rest of the detainees in Gitmo.  Are they all nice guys?  Are they ready to be released?  Are they the worst of the worst of the worst?  You mean to tell me, we just happen to negotiate away the absolute worst people on the face of the Earth and this is such a bad deal for America?” 

Well, Ed, there’s a reason the Taliban and Haqqani Network negotiated for these five guys.  There’s a reason the Taliban specifically requested these five guys…perhaps because they really are senior commanders and the “worst of the worst.” 

And it’s not just Republicans who are concerned about what the Taliban Five will do once released from Guantánamo.   Former Obama secretary of defense and director of the CIA Leon Panetta questioned the wisdom of the trade.  He stated that he opposed trading Berghdal for terrorists held at Guantánamo Bay when he was the secretary of defense.  He reasoned, “I have an obligation under the law.  If I send prisoners from Guantánamo, they have to guarantee they don’t go back to the battlefield.  I had serious concerns.”  Panetta claimed that talks between the U.S. and Taliban fell apart during his tenure because the Taliban asked for the “Guantánamo Five.”

Furthermore, complicating the American military withdrawal, the Afghan government protested the deal.  According to the liberal Huffington Post, “The prisoner swap has stoked anger in Afghanistan, where many view the deal as a further sign of a U.S. desire to disengage from Afghanistan as quickly as possible.” 

One thing is clear: the Taliban Five are the “hardest and toughest of all.”  That’s exactly why the Taliban wanted and needed them back so badly.  With 30,000 U.S.  troops still in Afghanistan, the Taliban Five's release presents a clear and present danger to American lives.  Claims to the contrary are clearly politically motivated and an attempt to save what’s left of a shattered presidency.

Under international law, U.S. has to release all detainees held at Guantánamo, so you might as well get something for them in return.

Several administration officials and media personnel claim that, under international law, the U.S. must release all detainees currently held at Guantánamo since the war in Afghanistan is coming to an end.  Speaking on NBC’s Meet the Press, defense secretary Hagel denied that the U.S. had negotiated with terrorists, calling the swap part of “a normal process in getting your prisoners back.”  Ken Gude, writing for liberal ThinkProgress, wrote, “President Obama recently announced that the combat role for the United States in the armed conflict in Afghanistan will end this year and all participation will completely cease by 2016.  When wars end, prisoners taken custody must be released…The five detainees that were included in the deal would have to be released soon anyway because the U.S. involvement in the armed conflict against the Taliban is ending.”

The general rule is that you release the opposing belligerent nation’s prisoners of war (POW) upon the cessation of hostilities.  The Third Geneva Convention, article 118, provides: “Prisoners of war shall be released and repatriated without delay after the cessation of hostilities.”  This is definitely a murky area in the War on Terror (or "overseas contingency operations" [with air quotes]) for several reasons.   First of all, the Taliban Five are not POW.  Secondly, what constitutes the cessation of hostilities is ambiguous at best in this conflict.

Are the Taliban Five POW?

The rationale behind the Geneva Conventions and the Law of Armed Conflict (LOAC) is reciprocity.  That reasoning obviously has no application to this current conflict.  Generally, belligerents must follow the LOAC in order to be afforded most of it protections.  No matter what the United States does, our enemies – the Taliban, al-Qaeda, and other affiliated Islamist groups – are not going to follow the LOAC.   Nonetheless, we provide Taliban and al-Qaeda members with certain protections under the LOAC that are not technically required and some minimum requirements that were mandated by the Supreme Court (i.e., Common Article 3 of Geneva Convention’s application to conflict in Afghanistan).  We do this because we are a moral and civilized people. 

However, there are limits to our generosity.  To pretend otherwise would incentivize bad behavior during armed conflicts.  Why worry about breaking the LOAC or Geneva Conventions if you are going to receive all the privileges and benefits that flow from being an honorable warrior who fights by the rules?

Thus, Taliban and al-Qaeda members are not entitled to the full protections of the Geneva Conventions or LOAC they otherwise would warrant if they were lawful combatants. 

Compliance with the LOAC bestows upon participants combatant immunity and POW status.  Taliban members are entitled to neither.  Article 4 of the Third Geneva Convention lays out the criteria for POW status.  In order to achieve POW status, belligerents must fulfill the following conditions:

  1.  that of being commanded by a person responsible for his subordinate;
  2. that of having a fixed distinctive sign recognizable at a distance;
  3. that of carrying arms openly;
  4. that of conducting their operations in accordance with the laws and customs of war.

Taliban detainees are not entitled to POW status because they have no fixed distinctive sign and "have not effectively distinguished themselves from the civilian population of Afghanistan."  In fact, the Taliban intentionally blend with the civilian population in order to intentionally increase civilian casualties.  Moreover, the Taliban do not “conduct their operations in accordance with the laws and customs of war.”

Another perk of following the LOAC and POW status is combatant immunity.  The LOAC provides lawful combatants with immunity for their lawful warlike acts during a conflict.  Lawful combatants have immunity from prosecution for acts that are unique to warfare but otherwise would be criminal, such as murder, conspiracy, unlawful restraint, arson, etc.  However, since the Taliban do not conduct their operations in accordance with the “laws and customs of war,” their members are not afforded combatant immunity.

Accordingly, Taliban members can be prosecuted for ordinary crimes under the laws of Afghanistan or the United States.  The Taliban Five could be prosecuted in federal court for providing material support to terrorists.  They could be prosecuted for war crimes in a military commission at Guantánamo. 

If we don’t have enough evidence to attain a conviction in federal court or a military commission, there is always the Afghan option.  We could have transferred the Taliban Five to the Afghan court system, where the burden of proof is significantly lower and evidentiary problems due to the nature of warfare would not be damning. 

In 2012-2013, I supervised and lead a team of Afghan National Directorate Security Prosecutors at the Afghan National Security Court, the Justice Center in Parwan (JCIP).  The JCIP is an Afghan-run court, with strong U.S. oversight, which has successfully prosecuted thousands of Taliban, Haqqani Network, and other Islamist extremists since 2010.  From reading over their Guantánamo case files and based on my experience at the JCIP, the Taliban Five definitely broke several Afghan laws and could have been successfully prosecuted at the JCIP.  At a minimum, the Taliban Five could have been prosecuted for their membership in the Taliban under Article 19 of the Afghan National Security Code.  Also, they would face charges for “destruction” under Article 14, a very broad category that surely would encompass the actions alleged in the Guantánamo case files.  Since they have no combatant immunity, they would not have been immune from criminal prosecution for acts not amounting to war crimes.      

To sum it up, the Taliban Five are not POW and have no combatant immunity.  Consequently, they could be prosecuted in federal court, a U.S. military commission, or at the Afghan-run JCIP.  None of these options is perfect.  However, all are better than simply releasing these terrorists back into the fight.  

Cessation of Hostilities?

Also, confounding the status of detainees at Guantánamo is the nature of the War on Terror.  This is not a conventional war.  We are not fighting a conventional enemy.   Our enemy does not wear uniforms, comply with the LOAC, or belong to a nation-state.  There is not going to be a V-Day or VJ-Day marking the cessation of hostilities. 

The complexities of this conflict seem lost on some commentators, though.  Ken Gude said the Taliban Five would have to be released soon anyway because the war in Afghanistan is coming to a close.  Writing in the New Republic, Jessica Schulberg argued: “The third Geneva Convention allows states that are engaged in an armed conflict to take their enemies as prisoners and hold them without charge.  The original intention of this provision was actually humanitarian – better to detain the enemy than kill them.  But this law is not the crux of the legal justification to indefinitely detain the remaining 149 prisoners at Guantánamo Bay.”  Schulberg claims that since Obama plans to pull out “all but 9,800 American troops from Afghanistan by the end of 2014,” there is a “serious political incentive to declare an end to the war.”  She goes on that “the straightforward interpretation of international law is that the end of the war means the end of Guantánamo.” 

Contrary to Ms. Schulberg’s assertion, the Third Geneva Convention is not, nor has it even been, the “crux of the legal justification to indefinitely detain” al-Qaeda or Taliban members.  The Third Geneva Convention applies to the treatment of POW.  Remember, due to their failure to abide by the LOAC and other criteria laid out in the Third Geneva Convention, Taliban detainees are not POW.  The Third Geneva Convention has never been applicable to the conflict in Afghanistan or the greater War on Terrorism.   

The conflict in Afghanistan, and the war on terror in general, is governed by Common Article 3 of the Geneva Conventions (different from the Third Geneva Convention).  Common Article 3 provides a baseline, minimal standard of care that you must follow with respect to detainees.  It requires the holding country or party provide food and shelter and to treat detainees “humanely.”  Detainees held in a Common Article 3 conflict have significantly fewer rights and protections than POWs.  Common Article 3 is silent on repatriating detainees following the cessation of hostilities.  

Due to the unique nature of this war, what constitutes the end of hostilities is not as simple as Schulberg and Gude would have you believe.  "When we are talking about a ‘war on terror,’ as opposed to an armed conflict among states, how do you determine when active hostilities have ceased?" said Anthony Clark Arend, Georgetown University professor of government and foreign service.  "Where there is an ongoing conflict with non-state actors that will likely continue even if U.S. forces leave Afghanistan, it is difficult to say that hostilities have really ended."  Arend claimed that there is a “void” in the Geneva Conventions regarding the type of detainees held at Guantánamo.

Is the war over when all U.S. troops leave Afghanistan, or when the War on Terror is said to be over?  The Authorization for the Use of Military Force (AUMF) passed in 2001 and hinged as part of broader War on Terror.  The AUMF granted the president the authority to use all “necessary and appropriate force” against those who he determined “planned, authorized, committed or aided” the September 11 attacks, or who harbored said persons or groups.  There has been a movement to repeal the AUMF, but it has garnered very little traction.  After ISIS’s success in Iraq and the Bergdahl fiasco, the AUMF is very likely to be repealed for some time.  The AUMF is still on the books and still authorizes the president to use force against the Taliban and other Islamist groups.   

There is a strong argument that the conflict in Afghanistan is just one battle in the war on terror.   The war on terror has encompassed multiple areas (Afghanistan, Iraq, Pakistan, Somalia, Yemen, the Phillipines, the Horn of Africa, and others) and multiple al-Qaeda-affiliated Islamist groups.    

It is true that there is a “void” in the Geneva Conventions and international law, and what constitutes the end of the War on Terror or the war in Afghanistan is up to interpretation.  Considering this, remember that the Taliban harbored al-Qaeda before and after 9/11, refuses to renounce terrorism or al-Qaeda, and refuses to comply with the LOAC.  Much of the confusion is a direct result of the Taliban’s perfidy and contempt for the LOAC.  Accordingly, any ambiguities or “voids” with respect to the end of this conflict should be interpreted in a light most favorable to the United States.

However, we don’t have to even get to that analysis yet.   Remember that the United States is still engaged in an active war in Afghanistan.  The war in Afghanistan is not over.  There are still over 30,000 troops in Afghanistan, and there will be thousands at least until the end of 2016.  U.S. and Coalition Forces are still taking casualties and likely will continue to for the foreseeable future.  The United States is not required to release all detainees held at Guantánamo any time soon.  Our enemies also have a say in when their war on the United States is finished.  Given recent events, the war on terrorism is far from over!

Republicans want to abandon a U.S. servicemember

President Obama dismissed as “irrelevant” concerns about how Berghdal disappeared, claiming, “Whatever those circumstances may turn out to be, we still get an American soldier back if he’s held in captivity – period, full stop.” 

Writing in the Huffington Post, Joseph Palermo argued (emphasis added), “Many of the same politicians and pundits who made such hay over the four lost American lives in Benghazi are now claiming that it might have been better to leave an American POW behind simply because they don’t like his politics or that he had gone AWOL.”  The always pleasant and charming Joan Walsh alleged that Republicans want to give the Taliban “the final word on an American soldier’s fate.”  MSNBC’s Chris Hayes tweeted: “Am I correct that the American right-wing has spent the day arguing we should have left an American soldier behind?”

Liberal efforts to equate any criticism of the deal with wanting to leave a soldier behind are preposterous.  Nobody has argued that Berghdal should have been left behind!  While “leave no soldier behind” is the general rule, that rule is not absolute.  The totality of the circumstances always must be taken into account. 

As National Review’s Jonah Goldberg succinctly puts it: “The Obama administration has been negotiating for years for Bergdahl’s release.  Why negotiate at all if we don’t have conditions?  Without conditions, the Taliban could ask for anything – all of the prisoners at Gitmo, a billion dollars, the L.A. clippers – and our hands would be tied.”   

You have to balance getting an American service member back against the negative incentives this deal creates.  The swap of Berghdal for the Taliban Five has undoubtedly  encouraged the Taliban to kidnap more U.S. service members.   A source described as a Taliban commander close to the negotiations told Fox News that “it’s better to kidnap one person like Bergdahl than kidnapping hundreds of useless people.”  He continued, “It has encouraged our people.  Now everybody will work hard to capture such an important bird.” 

In considering the balance, concerns about how Bergdahl disappeared are relevant.  Several soldiers who served with Bergdahl call him a “deserter” whose “selfish act ended up costing the lives of better men.”  Sgt. Matt Vierkant, a member of Bergdahl’s platoon when he went missing on June 30, 2009, said, “Bowe Bergdahl deserted during a time of war, and his fellow Americans lost their lives searching for him.”  Vierkant continued, “I don’t understand why we’re trading prisoners at Gitmo for somebody who deserted during a time of war, which is an act of treason.”

So whether it was sheer negligence or malfeasance on Berghdal’s part, the circumstances of how he disappeared are relevant when deciding whether to trade him for five dangerous senior Taliban commanders.

The point is that there is always a balance or conditions to any agreement like this.  Characterizing criticisms that we gave up too much to get Bergdahl or that this deal has dire consequences down the road for U.S. service members is in no way advocating for leaving a soldier behind. 

Swift-Boating Berghdal?

Buzzfeed made a big issue out of the fact that Republican political operatives helped soldiers familiar with Bergdahl get his story out.  On CNN’s Crossfire, Van Jones alleged that “the airwaves are being filled myseriously with former soldiers just trashing the guy [Bergdahl].”  According to Jones, “[t]here are Republican operatives who are working behind the scene to get some of those guys on television – this is an orchestrated smear campaign.”  An administration official referred to Bergdahl’s platoon-mates as “psycho smear merchants.”  On Morning Joe, Chuck Todd claimed that the Obama administration “did not expect this backlash.”  He continued, “I’ve had a few aides describe it to me as, ‘We didn’t know that they were going to swift-boat Bergdahl.’”

Swift-boating is not exactly a bad thing, though.  Rich Lowry of National Review argues that swift-boating is “what happens when men in uniform feel betrayed by a comrade and tell the public what they believe to be the truth about his service.”  Over at Hot Air, swift-boating was described as “telling the truth about someone’s military service when the truth is unhelpful to Democrats.” 

What’s totally absurd is the Obama administration’s attempts to orchestrate a smear campaign against these soldiers who, unlike Bergdahl, served honorably.  I think Michael Gerson sums it up best:

The Bergdahl case reveals a disturbing gap between the White House and military culture. After Bergdahl’s fellow soldiers corrected the administration’s false narrative, anonymous White House aides accused them of engaging in “Swift-boating.” Consider that a moment. While the White House (still) claims that Bergdahl served with “honor,” aides now impugn the motives of those who served beside him  –  and who stayed at their posts. Particularly in a time of war, why are these attacks not a firing offense?

And therein lies the problem.  There is a disturbing gap between the administration and the military.  First, the administration assumed that the military would be supportive of the trade and “did not expect the backlash.”  Next, if the military or intelligence community didn’t like the deal, the administration said they could “suck it up and salute.” 

If they failed to “suck it up and salute,” the next tack for the administration was “attack.”  In the attempt to justify the trade for a potential deserter, the Obama administration tried to tarnish honorable warriors as “psychopaths,” “swift-boaters,” and tools of Republican operatives.   This trade sets a dangerous precedent, but what is really noteworthy is the total lack of respect and total disregard the administration has for the military.

Brian W. Lynch is an assistant prosecutor in Ohio and JAG captain in Army Reserves who served as prosecutorial advisor at Afghanistan’s National Security Court.

The Obama administration has caught a bit of heat for the release of Sgt. Bowe Bergdahl from Taliban captivity, in exchange for transferring five senior Taliban detainees.   In an attempt to portray criticism of the transfer as politically motivated, President Obama recently complained that Sgt. Bergdahl is not a political football.  However, even several Democrat media figures and lawmakers have criticized the deal.  I want to take a little time to quash a few of the myths beings circulated by the administration and several liberal and mainstream media outlets.

The “Guantánamo Five” Not Really  “the Hardest and Toughest of All”

Senator John McCain referred to the five released senior Taliban members – Khairullah Said Wali Khairkhwa, Abdug Haq Wasiq, Mullah Noorullah Noori, Mullah Mohammad Fazel, and Mohammad Nabi Omari – as “the hardest and toughest of all.”  Several liberal commentators took exception to that phrase and conservatives characterizations of the “Taliban Five” in general.  There’s a strong incentive among supporters of the administration to portray these five men as mid-level Taliban leaders who pose a minimal or no threat. 

Writing for liberal Salon.com, Jean MacKenzie argued, “The five men, who are now in Qatar and barred from traveling for a year, do not really live up to their monster billing.”  MacKenzie claimed that Khairkhwa was merely a “moderate.”  She believes that simply because Noori and Fazl negotiated with Northern Alliance General Dostum in November 2001, they were not or are not a threat.  The only reason Noori and Fazl negotiated with Dostum was because they were completely and utterly defeated by U.S. and Coalition Forces.  They were not moderates, but were merely trying to save their own skins.   

Contrary to MacKenzie’s ramblings, these are some pretty bad dudes.  Khairkhwa, a founder of the Taliban in 1994 and former Taliban interior minister, was no moderate.  According to his Guantánamo case file, obtained by the Washington Post, he was a “hard-liner in his support of the Taliban philosophy” and “was known to have close ties to Osama bin Laden.”

Wasiq was a deputy chief of intelligence for the Taliban.  According to his case file, “he utilized his office to support al Qaeda” and “was central to the Taliban’s effort to form alliances with other Islamic fundamentalist groups.”  Omari “was a member of a joint al-Qaeda-Taliban cell in eastern Khost province and has ties to the Haqqani network.” 

Fazl was a senior military commander for the Taliban in the 1990s who “supervised the killing of thousands of Shiite Muslims near Kabul between 1998 and 2001.”  Khwaja Gul Ahmad, an Afghan who lived in a village destroyed by Fazl in the late 1990s, told the Wall Street Journal, “If he is released, he will burn our houses again because he doesn’t shake hands with the government.”  

Noori was a Taliban provincial governor who was “also suspected of being involved in the Shiite massacre.”  Both Noori and Fazl were present at the 2001 prison riot that killed CIA operative Johnny Michael Spann

There is little doubt that the Taliban Five are hard-line commanders who espouse a radical, Islamist agenda and very likely have American blood on their hands.   

Despite evidence to the contrary, Eugene Robinson appeared on MSNBC’s Morning Joe and argued that the released Taliban members’ impact on the war will likely be “negligible.”  Robinson made air quotes when referring to the Taliban Five as “senior Taliban officials."  Host Joe Scarborough was having none of it, countering, “I think that’s ridiculous, Gene.  I cannot sit back and let you say on our show that the release of five of the most important Taliban leaders is going to be negligible at this stage of the conflict.”  Robinson incredulously replied, “How can you say they’re going to move back into the command of the Taliban?” 

It looks as if Robinson has never heard the story of Mullah Zakir.  Zakir was held at Guantánamo until 2007 and classified as a “medium-level” threat by the Guantánamo authorities (the Taliban Five, on the other hand, were all classified as high-level threats).  Upon Zakir’s release in 2007, he rejoined the Taliban and was the “main military commander until stepping down, for health reasons, early in 2014.” 

Kevin Sieff noted in the Washington Post that “lower-ranking Taliban commanders, released from the Bagram prison by the Afghan government over the past year, have already returned to the battlefield.” 

Already, according to NBC News, Noorullah Noori promised to “go to Afghanistan and fight American forces there.”  I don’t think the Taliban Five will encounter too many problems “moving back into the command of the Taliban.”

Presidential hopeful Hillary Clinton also argued that the “released Gitmo detainees are not a threat to the United States.”  Perennial blowhard Ed Schultz brushed away concerns about the released Taliban members: “I think what the Republicans need to do is give us an update on the rest of the detainees in Gitmo.  Are they all nice guys?  Are they ready to be released?  Are they the worst of the worst of the worst?  You mean to tell me, we just happen to negotiate away the absolute worst people on the face of the Earth and this is such a bad deal for America?” 

Well, Ed, there’s a reason the Taliban and Haqqani Network negotiated for these five guys.  There’s a reason the Taliban specifically requested these five guys…perhaps because they really are senior commanders and the “worst of the worst.” 

And it’s not just Republicans who are concerned about what the Taliban Five will do once released from Guantánamo.   Former Obama secretary of defense and director of the CIA Leon Panetta questioned the wisdom of the trade.  He stated that he opposed trading Berghdal for terrorists held at Guantánamo Bay when he was the secretary of defense.  He reasoned, “I have an obligation under the law.  If I send prisoners from Guantánamo, they have to guarantee they don’t go back to the battlefield.  I had serious concerns.”  Panetta claimed that talks between the U.S. and Taliban fell apart during his tenure because the Taliban asked for the “Guantánamo Five.”

Furthermore, complicating the American military withdrawal, the Afghan government protested the deal.  According to the liberal Huffington Post, “The prisoner swap has stoked anger in Afghanistan, where many view the deal as a further sign of a U.S. desire to disengage from Afghanistan as quickly as possible.” 

One thing is clear: the Taliban Five are the “hardest and toughest of all.”  That’s exactly why the Taliban wanted and needed them back so badly.  With 30,000 U.S.  troops still in Afghanistan, the Taliban Five's release presents a clear and present danger to American lives.  Claims to the contrary are clearly politically motivated and an attempt to save what’s left of a shattered presidency.

Under international law, U.S. has to release all detainees held at Guantánamo, so you might as well get something for them in return.

Several administration officials and media personnel claim that, under international law, the U.S. must release all detainees currently held at Guantánamo since the war in Afghanistan is coming to an end.  Speaking on NBC’s Meet the Press, defense secretary Hagel denied that the U.S. had negotiated with terrorists, calling the swap part of “a normal process in getting your prisoners back.”  Ken Gude, writing for liberal ThinkProgress, wrote, “President Obama recently announced that the combat role for the United States in the armed conflict in Afghanistan will end this year and all participation will completely cease by 2016.  When wars end, prisoners taken custody must be released…The five detainees that were included in the deal would have to be released soon anyway because the U.S. involvement in the armed conflict against the Taliban is ending.”

The general rule is that you release the opposing belligerent nation’s prisoners of war (POW) upon the cessation of hostilities.  The Third Geneva Convention, article 118, provides: “Prisoners of war shall be released and repatriated without delay after the cessation of hostilities.”  This is definitely a murky area in the War on Terror (or "overseas contingency operations" [with air quotes]) for several reasons.   First of all, the Taliban Five are not POW.  Secondly, what constitutes the cessation of hostilities is ambiguous at best in this conflict.

Are the Taliban Five POW?

The rationale behind the Geneva Conventions and the Law of Armed Conflict (LOAC) is reciprocity.  That reasoning obviously has no application to this current conflict.  Generally, belligerents must follow the LOAC in order to be afforded most of it protections.  No matter what the United States does, our enemies – the Taliban, al-Qaeda, and other affiliated Islamist groups – are not going to follow the LOAC.   Nonetheless, we provide Taliban and al-Qaeda members with certain protections under the LOAC that are not technically required and some minimum requirements that were mandated by the Supreme Court (i.e., Common Article 3 of Geneva Convention’s application to conflict in Afghanistan).  We do this because we are a moral and civilized people. 

However, there are limits to our generosity.  To pretend otherwise would incentivize bad behavior during armed conflicts.  Why worry about breaking the LOAC or Geneva Conventions if you are going to receive all the privileges and benefits that flow from being an honorable warrior who fights by the rules?

Thus, Taliban and al-Qaeda members are not entitled to the full protections of the Geneva Conventions or LOAC they otherwise would warrant if they were lawful combatants. 

Compliance with the LOAC bestows upon participants combatant immunity and POW status.  Taliban members are entitled to neither.  Article 4 of the Third Geneva Convention lays out the criteria for POW status.  In order to achieve POW status, belligerents must fulfill the following conditions:

  1.  that of being commanded by a person responsible for his subordinate;
  2. that of having a fixed distinctive sign recognizable at a distance;
  3. that of carrying arms openly;
  4. that of conducting their operations in accordance with the laws and customs of war.

Taliban detainees are not entitled to POW status because they have no fixed distinctive sign and "have not effectively distinguished themselves from the civilian population of Afghanistan."  In fact, the Taliban intentionally blend with the civilian population in order to intentionally increase civilian casualties.  Moreover, the Taliban do not “conduct their operations in accordance with the laws and customs of war.”

Another perk of following the LOAC and POW status is combatant immunity.  The LOAC provides lawful combatants with immunity for their lawful warlike acts during a conflict.  Lawful combatants have immunity from prosecution for acts that are unique to warfare but otherwise would be criminal, such as murder, conspiracy, unlawful restraint, arson, etc.  However, since the Taliban do not conduct their operations in accordance with the “laws and customs of war,” their members are not afforded combatant immunity.

Accordingly, Taliban members can be prosecuted for ordinary crimes under the laws of Afghanistan or the United States.  The Taliban Five could be prosecuted in federal court for providing material support to terrorists.  They could be prosecuted for war crimes in a military commission at Guantánamo. 

If we don’t have enough evidence to attain a conviction in federal court or a military commission, there is always the Afghan option.  We could have transferred the Taliban Five to the Afghan court system, where the burden of proof is significantly lower and evidentiary problems due to the nature of warfare would not be damning. 

In 2012-2013, I supervised and lead a team of Afghan National Directorate Security Prosecutors at the Afghan National Security Court, the Justice Center in Parwan (JCIP).  The JCIP is an Afghan-run court, with strong U.S. oversight, which has successfully prosecuted thousands of Taliban, Haqqani Network, and other Islamist extremists since 2010.  From reading over their Guantánamo case files and based on my experience at the JCIP, the Taliban Five definitely broke several Afghan laws and could have been successfully prosecuted at the JCIP.  At a minimum, the Taliban Five could have been prosecuted for their membership in the Taliban under Article 19 of the Afghan National Security Code.  Also, they would face charges for “destruction” under Article 14, a very broad category that surely would encompass the actions alleged in the Guantánamo case files.  Since they have no combatant immunity, they would not have been immune from criminal prosecution for acts not amounting to war crimes.      

To sum it up, the Taliban Five are not POW and have no combatant immunity.  Consequently, they could be prosecuted in federal court, a U.S. military commission, or at the Afghan-run JCIP.  None of these options is perfect.  However, all are better than simply releasing these terrorists back into the fight.  

Cessation of Hostilities?

Also, confounding the status of detainees at Guantánamo is the nature of the War on Terror.  This is not a conventional war.  We are not fighting a conventional enemy.   Our enemy does not wear uniforms, comply with the LOAC, or belong to a nation-state.  There is not going to be a V-Day or VJ-Day marking the cessation of hostilities. 

The complexities of this conflict seem lost on some commentators, though.  Ken Gude said the Taliban Five would have to be released soon anyway because the war in Afghanistan is coming to a close.  Writing in the New Republic, Jessica Schulberg argued: “The third Geneva Convention allows states that are engaged in an armed conflict to take their enemies as prisoners and hold them without charge.  The original intention of this provision was actually humanitarian – better to detain the enemy than kill them.  But this law is not the crux of the legal justification to indefinitely detain the remaining 149 prisoners at Guantánamo Bay.”  Schulberg claims that since Obama plans to pull out “all but 9,800 American troops from Afghanistan by the end of 2014,” there is a “serious political incentive to declare an end to the war.”  She goes on that “the straightforward interpretation of international law is that the end of the war means the end of Guantánamo.” 

Contrary to Ms. Schulberg’s assertion, the Third Geneva Convention is not, nor has it even been, the “crux of the legal justification to indefinitely detain” al-Qaeda or Taliban members.  The Third Geneva Convention applies to the treatment of POW.  Remember, due to their failure to abide by the LOAC and other criteria laid out in the Third Geneva Convention, Taliban detainees are not POW.  The Third Geneva Convention has never been applicable to the conflict in Afghanistan or the greater War on Terrorism.   

The conflict in Afghanistan, and the war on terror in general, is governed by Common Article 3 of the Geneva Conventions (different from the Third Geneva Convention).  Common Article 3 provides a baseline, minimal standard of care that you must follow with respect to detainees.  It requires the holding country or party provide food and shelter and to treat detainees “humanely.”  Detainees held in a Common Article 3 conflict have significantly fewer rights and protections than POWs.  Common Article 3 is silent on repatriating detainees following the cessation of hostilities.  

Due to the unique nature of this war, what constitutes the end of hostilities is not as simple as Schulberg and Gude would have you believe.  "When we are talking about a ‘war on terror,’ as opposed to an armed conflict among states, how do you determine when active hostilities have ceased?" said Anthony Clark Arend, Georgetown University professor of government and foreign service.  "Where there is an ongoing conflict with non-state actors that will likely continue even if U.S. forces leave Afghanistan, it is difficult to say that hostilities have really ended."  Arend claimed that there is a “void” in the Geneva Conventions regarding the type of detainees held at Guantánamo.

Is the war over when all U.S. troops leave Afghanistan, or when the War on Terror is said to be over?  The Authorization for the Use of Military Force (AUMF) passed in 2001 and hinged as part of broader War on Terror.  The AUMF granted the president the authority to use all “necessary and appropriate force” against those who he determined “planned, authorized, committed or aided” the September 11 attacks, or who harbored said persons or groups.  There has been a movement to repeal the AUMF, but it has garnered very little traction.  After ISIS’s success in Iraq and the Bergdahl fiasco, the AUMF is very likely to be repealed for some time.  The AUMF is still on the books and still authorizes the president to use force against the Taliban and other Islamist groups.   

There is a strong argument that the conflict in Afghanistan is just one battle in the war on terror.   The war on terror has encompassed multiple areas (Afghanistan, Iraq, Pakistan, Somalia, Yemen, the Phillipines, the Horn of Africa, and others) and multiple al-Qaeda-affiliated Islamist groups.    

It is true that there is a “void” in the Geneva Conventions and international law, and what constitutes the end of the War on Terror or the war in Afghanistan is up to interpretation.  Considering this, remember that the Taliban harbored al-Qaeda before and after 9/11, refuses to renounce terrorism or al-Qaeda, and refuses to comply with the LOAC.  Much of the confusion is a direct result of the Taliban’s perfidy and contempt for the LOAC.  Accordingly, any ambiguities or “voids” with respect to the end of this conflict should be interpreted in a light most favorable to the United States.

However, we don’t have to even get to that analysis yet.   Remember that the United States is still engaged in an active war in Afghanistan.  The war in Afghanistan is not over.  There are still over 30,000 troops in Afghanistan, and there will be thousands at least until the end of 2016.  U.S. and Coalition Forces are still taking casualties and likely will continue to for the foreseeable future.  The United States is not required to release all detainees held at Guantánamo any time soon.  Our enemies also have a say in when their war on the United States is finished.  Given recent events, the war on terrorism is far from over!

Republicans want to abandon a U.S. servicemember

President Obama dismissed as “irrelevant” concerns about how Berghdal disappeared, claiming, “Whatever those circumstances may turn out to be, we still get an American soldier back if he’s held in captivity – period, full stop.” 

Writing in the Huffington Post, Joseph Palermo argued (emphasis added), “Many of the same politicians and pundits who made such hay over the four lost American lives in Benghazi are now claiming that it might have been better to leave an American POW behind simply because they don’t like his politics or that he had gone AWOL.”  The always pleasant and charming Joan Walsh alleged that Republicans want to give the Taliban “the final word on an American soldier’s fate.”  MSNBC’s Chris Hayes tweeted: “Am I correct that the American right-wing has spent the day arguing we should have left an American soldier behind?”

Liberal efforts to equate any criticism of the deal with wanting to leave a soldier behind are preposterous.  Nobody has argued that Berghdal should have been left behind!  While “leave no soldier behind” is the general rule, that rule is not absolute.  The totality of the circumstances always must be taken into account. 

As National Review’s Jonah Goldberg succinctly puts it: “The Obama administration has been negotiating for years for Bergdahl’s release.  Why negotiate at all if we don’t have conditions?  Without conditions, the Taliban could ask for anything – all of the prisoners at Gitmo, a billion dollars, the L.A. clippers – and our hands would be tied.”   

You have to balance getting an American service member back against the negative incentives this deal creates.  The swap of Berghdal for the Taliban Five has undoubtedly  encouraged the Taliban to kidnap more U.S. service members.   A source described as a Taliban commander close to the negotiations told Fox News that “it’s better to kidnap one person like Bergdahl than kidnapping hundreds of useless people.”  He continued, “It has encouraged our people.  Now everybody will work hard to capture such an important bird.” 

In considering the balance, concerns about how Bergdahl disappeared are relevant.  Several soldiers who served with Bergdahl call him a “deserter” whose “selfish act ended up costing the lives of better men.”  Sgt. Matt Vierkant, a member of Bergdahl’s platoon when he went missing on June 30, 2009, said, “Bowe Bergdahl deserted during a time of war, and his fellow Americans lost their lives searching for him.”  Vierkant continued, “I don’t understand why we’re trading prisoners at Gitmo for somebody who deserted during a time of war, which is an act of treason.”

So whether it was sheer negligence or malfeasance on Berghdal’s part, the circumstances of how he disappeared are relevant when deciding whether to trade him for five dangerous senior Taliban commanders.

The point is that there is always a balance or conditions to any agreement like this.  Characterizing criticisms that we gave up too much to get Bergdahl or that this deal has dire consequences down the road for U.S. service members is in no way advocating for leaving a soldier behind. 

Swift-Boating Berghdal?

Buzzfeed made a big issue out of the fact that Republican political operatives helped soldiers familiar with Bergdahl get his story out.  On CNN’s Crossfire, Van Jones alleged that “the airwaves are being filled myseriously with former soldiers just trashing the guy [Bergdahl].”  According to Jones, “[t]here are Republican operatives who are working behind the scene to get some of those guys on television – this is an orchestrated smear campaign.”  An administration official referred to Bergdahl’s platoon-mates as “psycho smear merchants.”  On Morning Joe, Chuck Todd claimed that the Obama administration “did not expect this backlash.”  He continued, “I’ve had a few aides describe it to me as, ‘We didn’t know that they were going to swift-boat Bergdahl.’”

Swift-boating is not exactly a bad thing, though.  Rich Lowry of National Review argues that swift-boating is “what happens when men in uniform feel betrayed by a comrade and tell the public what they believe to be the truth about his service.”  Over at Hot Air, swift-boating was described as “telling the truth about someone’s military service when the truth is unhelpful to Democrats.” 

What’s totally absurd is the Obama administration’s attempts to orchestrate a smear campaign against these soldiers who, unlike Bergdahl, served honorably.  I think Michael Gerson sums it up best:

The Bergdahl case reveals a disturbing gap between the White House and military culture. After Bergdahl’s fellow soldiers corrected the administration’s false narrative, anonymous White House aides accused them of engaging in “Swift-boating.” Consider that a moment. While the White House (still) claims that Bergdahl served with “honor,” aides now impugn the motives of those who served beside him  –  and who stayed at their posts. Particularly in a time of war, why are these attacks not a firing offense?

And therein lies the problem.  There is a disturbing gap between the administration and the military.  First, the administration assumed that the military would be supportive of the trade and “did not expect the backlash.”  Next, if the military or intelligence community didn’t like the deal, the administration said they could “suck it up and salute.” 

If they failed to “suck it up and salute,” the next tack for the administration was “attack.”  In the attempt to justify the trade for a potential deserter, the Obama administration tried to tarnish honorable warriors as “psychopaths,” “swift-boaters,” and tools of Republican operatives.   This trade sets a dangerous precedent, but what is really noteworthy is the total lack of respect and total disregard the administration has for the military.

Brian W. Lynch is an assistant prosecutor in Ohio and JAG captain in Army Reserves who served as prosecutorial advisor at Afghanistan’s National Security Court.

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