Members of Congress erupted in outrage over the prisoner swap that traded five high-ranking Taliban officials from GITMO for American POW Bowe Bergdahl, the only US soldier known to be held by the Taliban. Appearing on NBC’s Meet the Press, Defense Secretary Chuck Hagel defended the decision to make the swap, arguing that Bergdahl’s life was in imminent danger and that the President has the exclusive authority to act in regard to prisoners captured in wartime.
We’ll get back to that point in a moment, but Hagel also argued that this trade could produce negotiations long sought by the US to end the civil war in Afghanistan:
US Defense Secretary Chuck Hagel expressed hope Sunday the release of US Army Sergeant Bowe Bergdahl would lead to direct US talks with the Taliban.
“It could, it might and we hope it will present an opening,” Hagel said in an interview from Bagram Air Base in Afghanistan with NBC’s “Meet the Press.”
Hagel noted that the United States had engaged in talks with the Taliban before, until they were broken off in 2012, and that it strongly supported an Afghan-led effort to reach a peace agreement with the Taliban.
“So maybe this will be a new opening that can produce an agreement,” he said.
There has been an avalanche of criticism over the release of these five GITMO detainees, who are the highest of high-value Taliban operatives. The criticism misses a larger point, though, which is that they were going to get released sooner or later anyway. Their detention hinges on our participation in the Afghan civil war. Unlike the al-Qaeda operatives still in GITMO, there aren’t any other grounds on which to hold them. When we end combat operations in Afghanistan this year, and especially when we fully withdraw in 2016, any justification for continuing to hold them indefinitely evaporates along with our presence. At the very least, we’d have to return them to the custody of the Afghan government, which would probably release them for their own purposes, and Bergdahl would probably not have been one of them.
The fight in Afghanistan is a real civil war, and has been ever since the end of the Soviet occupation. It’s even more a tribal war, with the Pashtuns against the other tribes in Afghanistan. This isn’t the same dynamic as the broader war on terror, where AQ is a small but dangerous network of terrorists. The Taliban are part of the native Afghan mix, and the Pashtuns haven’t given up on loyalty to them. In order to end the civil war in Afghanistan, the Taliban have to eventually become a negotiating party at those talks. As despicable as these detainees are in American eyes, eventually they will become Afghanistan’s problem, and not ours — unless we want to continue to make war in Afghanistan for another decade or more, only to come to the same result, at least in the sense that this tribal/civil war will only end through integration of tribal systems and negotiated end to tribal disputes.
On the point of authority to execute this swap, though, Hagel and the Obama administration get pretty cynical:
Speaking to reporters aboard his aircraft en route to Bagram, Hagel rejected charges by some Republican lawmakers that the exchange of Bergdahl for five Taliban detainees held at Guantanamo prison had violated congressional requirements for advance notification on detainee transfers. He said that President Obama had used his executive power under the Constitution.
“We believe that the President of the United States, as commander in chief, has the power and authority to make the decision that he did under Article II of the Constitution,” Hagel said. Obama has hesitated at times to assert his executive power without seeking congressional approval.
If that sounds familiar, it should. George W. Bush used the same argument to defend the establishment of GITMO in the first place, along with the indefinite detention of people like the Taliban 5 that just got traded and the military commissions to try al-Qaeda terrorists at GITMO. Politicians like Barack Obama insisted that Bush didn’t have this authority, and pressed the courts to interfere with his administration’s attempts to try the terrorists, with enough success that we still haven’t tried Khalid Sheikh Mohammed and the other 9/11 conspirators. Obama tried pushing the whole thing into the federal court system by arguing that the executive branch (including the military) should not have the final authority on matters concerning the detainees, although the White House ended up backing away from that political argument in the end.
Ironic or not, the authority to trade prisoners in wartime still belongs to the executive branch. The only reason Congress believes they have a say is because Obama and his allies demanded it before Obama became President.