Bowe Bergdahl and the Guantánamo Paradox

By Amy Davidson, The New Yorker

04 June 14

s it better, at Guantánamo, to be bad—even to be, as Senator John McCain said, of the five prisoners traded for Sergeant Bowe Bergdahl this weekend, “the hardest of the hardcore”? Being, say, a Taliban leader means that you are important to someone who might have a way to bargain you out of there. That doesn’t seem to be true of the seventy-eight prisoners still at Guantánamo—more than half the present total of a hundred and forty-nine—who have been cleared for release, and are sitting there still. They are not the ones who were taken away by Qatari diplomats on Saturday. That is not an indictment of the deal itself, though there are questions enough about it. But the Bergdahl case, and the dismay with which it’s been greeted, is as good an illustration as any that we’ve had in a while of why Guantánamo does not make sense.

These five prisoners, known to be Taliban commanders and officials, were ones the Obama Administration had said should be held indefinitely, because they posed a threat. However, it was not prepared to charge them with any crime. One thing that the angry response to the trade revealed is that the implicit definition of “indefinite,” in many quarters, was “forever.” But indefinite means indefinite; when you have what, despite the frippery of various review boards, are essentially extrajudicial imprisonments based on the judgment of the executive, you might have people who get out a lot sooner than one would expect, too. Want to be more sure that the people now at Guantánamo stay prisoners for an extended period of time? Then convict them of something; give them a sentence.

Similarly, Guantánamo’s advocates have long dismissed legal (and moral) doubts by repeating the word “war,” arguing that these are battlefield prisoners. But prisoners of war get released when conflicts end. The main affiliation of these prisoners is the Taliban, not Al Qaeda, and their fight is the war in Afghanistan, which is winding down. (John Bellinger makes this point in a post at Lawfare.) They also get exchanged. One can’t have it both ways: there are laws associated with prisoners of war, too. The phrase “P.O.W.” is not just shorthand hand for “don’t have to go to court.”

Congress had passed a law saying that if the Secretary of Defense wanted to transfer or release a prisoner, it had to be notified thirty days ahead of time. The Obama Administration seems to be arguing, alternately, that it sort of did, and that it didn’t have to. Susan Rice, the national-security adviser, argued on CNN, that there were general briefings “when we had past potential to have this kind of arrangement.” And it doesn’t sound like many congressional Republicans do count that. (Mike Rogers said that he remembered some briefing in 2011, but said it was one that he and his colleagues didn’t like.) Secretary Hagel, over the weekend, said that Bergdahl’s declining health made a time lapse impractical. President Obama’s signing statement on the bill said that it might be unconstitutional if it kept him from acting “swiftly in conducting negotiations with foreign countries,” and, indeed, there is something constitutionally odd about a law designed to keep a specific list of people—some of whom, it can’t be said often enough, have been found not to be threats—imprisoned without trial. But Obama should not get a pass on this. He has, in general, dealt with congressional attempts to keep him from closing Guantánamo, such as restrictions on spending certain funds to move prisoners, with a sort of learned helplessness, as if all his good will had faced an impassable wall. He has not tried to find the everyday limits of the various restrictions, or challenged them, substantively, in less hectic circumstances. Bergdahl has been a prisoner for years. What else, by that standard, might count as an emergency?

The very worst of the worst at Guantánamo, if one had to pick, would likely be Khalid Sheikh Mohammed and the other four September 11th conspirators. They are not likely to be traded soon. But they have been granted something that lesser prisoners don’t get: an actual legal proceeding against them, albeit in a military tribunal. At the moment, only those five and one other do, though there are about two dozen more the Obama Administration says it would like to try at some point. (The Miami Herald has a good rundown of the numbers.) Of all the prisoners who have passed through, only eight have ever been convicted. Uncertainty is a punishment, too. So is the lack of any narrative in one’s life.

The reaction to the trade has been complicated by the views of Bergdahl himself. Michael Hastings, in a piece he wrote for Rolling Stone before he died, reported that Bergdahl walked away from his unit, perhaps out of a sense of disillusionment. In the past few days, with his safety no longer in question, there have been more details about that, and more anger. On Tuesday morning, General Martin Dempsey wrote, on his Facebook page, “In response to those of you interested in my personal judgments about the recovery of SGT Bowe Bergdahl, the questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity. This was likely the last, best opportunity to free him. As for the circumstances of his capture, when he is able to provide them, we’ll learn the facts. Like any American, he is innocent until proven guilty.” That is a fair statement, but the whole story has been caught in a whirl of feeling about how you recognize and react to a hero or a deserter, and the sacrifices asked of our soldiers. (Some of his former colleagues have said in recent days that troops were endangered and lives were lost in the search for Bergdahl, an issue which, the Times notes this morning, is not so simple to sort out.) Why did six of our troops die in Paktika in the period after Bergdahl went missing there? Where does the answer to that begin?

Those emotions are understandably hard to put aside in weighing the equation—five prisoners for Bergdahl. The question, for many, of whether any Guantánamo prisoners should be traded for an American has been muddled with that of whether this American was worth it. But the confusion is amplified because Guantánamo itself is governed by emotion rather than principle or procedure. We look at the prisoners who we never plan to charge with any crime and defer to our fear and anger. What can we trade, now, to be released from them?