After five years in captivity by the Taliban in Afghanistan, Sgt. Bowe Bergdahl was released by his captors. The United States brokered a deal to rescue Bergdahl in exchange for five senior Taliban leaders. What does it mean? Heritage’s Cully Stimson—who previously coordinated the Pentagon’s global detention policy and operations, including at Guantanamo Bay and in Iraq and Afghanistan—answered that question and others.

Was the prisoner swap of five high-level Taliban operatives detained at Guantanamo Bay for more than a decade in exchange for U.S. Army Sgt. Bowe Bergdahl a good decision?

There is broad agreement that getting a U.S. soldier home from captivity at the hands of enemy forces is obviously a good thing. Welcome home.

Some of his fellow soldiers, including those in his unit, have been critical of the swap in part because they believe Bergdahl left his appointed duties and may have deserted. They point to the fact that other soldiers were ordered to look for him, and some of them perished in the process. Their feelings are completely understandable, especially considering that they—unlike most Americans—served in combat after 9/11 to protect each of us.

The fact that Bergdahl may have abandoned his post, or even been a deserter, does not make him any less worthy of rescue or recovery. He is still an American soldier, who, by the way, is innocent under the law of any allegations of desertion unless and until proven guilty beyond a reasonable doubt at a court-martial.

Did the Obama administration negotiate with the Taliban to secure Bergdahl’s rescue?

Yes, albeit through an intermediary—the government of Qatar. The administration gave the Taliban exactly what and who it wanted—the five most senior Taliban leaders at Guantanamo. Those five included:

  • Khairkhwa—the founding member of the Taliban and confidant of Mullah Omar
  • Fazl—the former defense minister and commander of all Taliban troops in Northern Afghanistan during September 2001
  • Wasiq—the former deputy minister of intelligence for the Taliban
  • Omari—a high-level Taliban security official
  • Noori—a Taliban governor of the Balkh province

Whether those negotiations violate our long-held principle of not negotiating with terrorist organizations is something the administration must defend. Some believe it sets a dangerous precedent; others, including this administration, believe this negotiation was necessary under the unique circumstances and does not violate the general principle.

Wasn’t it risky to allow Guantanamo detainees to be released? Will they pose a security threat in the future?

All transfers from Guantanamo carry some risk. That is why both the Bush and Obama administrations engaged in detailed negotiations with the receiving country (either the detainees’ home country or a third country willing to accept the detainee) to make sure that country could mitigate the threat the detainee continues to pose.  The five Taliban leaders transferred to Qatar will be in Qatar for a year, but what happens after that and the exact terms of the security arrangement are not known at this time.  Congressional committees of jurisdiction should be briefed on those details now that the deal is done.

What is known is that if any of those five former detainees are released after (or before) the year is out, and if they engage in belligerent activity against the United States or our allies during a state of legal armed conflict, they will be lawful targets under the law of armed conflict.

Should the Obama administration have notified Congress?

The administration did not comply with the 30-day congressional notification requirement to transfer detainees from Guantanamo. Under Section 1035 of the National Defense Authorization Act of 2014, Congress placed certain restrictions on the transfer to foreign countries of individuals detained at Guantanamo. It requires the secretary of defense to notify the Armed Services, Appropriations and Intelligence Committees of the Senate and House not later than 30 days before the transfer of any such detainees.

The president signed the FY14 NDAA, but issued a signing statement with respect to Section 1035 stating, in part, that he opposes the section and that under certain circumstances it violates “constitutional separation of powers principles.” Given the uproar from some members of Congress on this violation of the 30-day notice requirement, expect to see Congress engaging with the administration on this issue in the coming days and weeks.