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U.S.-Taliban deal raises six intertwined issues

by Ramesh Thakur

What should have been a joyous family reunion, a chance to welcome home a war hero and a photo-opportunity for a beleaguered administration, might prove instead to be a case study of multilayered complexity, nuance and ambiguity. A feel-good story threatens to validate the negative narrative of a president who deals with foreign bad guys and brushes aside the law with cavalier contempt. In hindsight, U.S. President Barack Obama would have done better simply saying that sometimes a president must rise above principles to do dirty deals that save a soldier’s life.

On May 31, after five years in Taliban captivity, 28-year old U.S. Army Sgt. Bowe Bergdahl was released to U.S. Special Forces personnel. He is currently recuperating at a U.S. military base in Germany. In return, the U.S. released the five highest-ranking members of the Afghan Taliban from Guantanamo Bay into the custody of Qatar.

There are six intertwined issues:

First, the U.S. deserves praise and commendation for its commitment to the policy of “No soldier left behind,” described as a “pretty sacred rule” by Obama. He insisted that this is not conditional on the nature of the circumstances. Five years is a long time to be a prisoner. With the U.S. combat mission drawing to a close, when a window of opportunity opened, Obama moved decisively to secure Berghdal’s release.

Second, had he proven to be an all-American hero, complaints about various issues might have been dismissed as partisan carping. Unfortunately the exact circumstances of Berghdal’s capture are murky and need to be investigated. So, the story has legs and will stay in the news, feeding into the narrative of still-unanswered questions about the terrorist attack on the U.S. compound in Benghazi, Libya, on Sept. 12, 2012, that killed U.S. Ambassador Chris Stevens.

In an unfortunate reprise of her performance on Benghazi as America’s U.N. ambassador on the Sunday talk shows, now National Security Adviser Susan Rice said on Sunday that Bergdahl served “with honor and distinction.”

Hardly. There is evidence he was disillusioned with the U.S. military mission and competence. An entire U.S. Army division plus Afghan police and security forces searched for him for weeks during which six lives were reportedly lost.

According to a fusillade of angry criticism from angry fellow soldiers from his former unit, at best Berghdal was a deserter, at worst a traitor. If so, he could be prosecuted.

Gen. Martin Dempsey, chairman of the joint chiefs of staff, has said the army would not ignore misconduct and will conduct a fresh review into the circumstances surrounding Bergdahl’s capture.

Third, did Obama violate the U.S. policy of not negotiating with terrorists? There are two unavoidable risks. On the one hand, it gives added incentive to take U.S. soldiers, diplomats and citizens hostage as bargaining chips for all manner of demands by enemy forces and terrorists. The administration insists that this was emphatically not a terrorists-for-hostages swap but an exchange of prisoners of war (POW). Berghdal was not a hostage but a POW. The Taliban five were not terrorists but combatants captured in a war who represent a defeated government in Afghanistan.

On the other hand, the release of five Afghan Taliban could see them return to active duty in due course. Afghan Taliban leader Mullah Mohammad Omar has hailed this as a “big victory.”

Republican Sen. John McCain called the released Afghans “the hardest of the hardcore.” Congressman Mike Rogers, who chairs the House Intelligence Committee, accused the president of having endangered American lives.

The White House insists that the deal with Qatar — which brokered the prisoner swap — will “sufficiently mitigate” risks to U.S. national security. The Arab emirate has taken temporary custody of the Taliban five. Qatar’s Emir has personally promised Obama that the five will be closely monitored and will not leave Qatar for at least a year.

Fourth, Obama is accused of contravening the law that requires the White House to notify Congress 30 days in advance of any transfers of Guantanamo prisoners. The administration explained it needed to seize the opportunity amid concerns about Bergdahl’s health if the transfer was delayed.

Republican House Speaker John Boehner has backed calls for congressional hearings into the matter, saying it was “important that we get clarity” on the prisoner exchange. Defense Secretary Chuck Hagel has been invited by the House Armed Services Committee to testify at a hearing Wednesday to look into the swap deal.

Fifth, it is far from clear that Washington factored in the possible regional repercussions, especially for Pakistan and India. Kabul has criticized the deal as a violation of international law because five of its citizens have been handed over to a third country as prisoners.

A year from now, if the Taliban five find themselves back in Afghanistan from which U.S. troops have been withdrawn, the full impact of their return to active duty would be felt in Afghanistan, Pakistan and India.

Finally Obama may have found a way around the impasse over the Guantanamo Bay detention facility. A legal black hole, Guantanamo has been a symbol of how grievously the U.S. had contravened due process, international law, international humanitarian law and international human rights law in its misguided war on terror. It is an indelible stain on the Bush administration.

Failure to close it is not merely a broken promise by Obama; it will also be a blot on his legacy.

Once the war in Afghanistan is over, it would seem even more unconscionable for prisoners captured in that war still to be held in Guantanamo. A message of the swap is: If you can’t close Gitmo, shrink it. If Obama can exercise his authority to swap five high-value Taliban prisoners for one U.S. soldier, what is to stop him from using his pen to retrieve some lost American honor and compromised justice by releasing all Guantanamo detainees who have been cleared of posing any security threat to the U.S.?

By way of a postscript, two final thoughts. The episode proves that the Afghan Taliban’s office in Qatar is connected deep into the Taliban military command structure back in Afghanistan. And it proves that the Taliban can negotiate, sign and deliver on a deal. Both points might prove handy in the months and years to come.

Ramesh Thakur is professor in the Crawford School of Public Policy, Australian National University.