The release of Sgt. Bowe Bergdahl, a captive of Islamist extremists for almost five years, is good news not only for his family but for all Americans. But the price the Obama administration paid for the 28-year-old soldier’s repatriation was freedom for five detainees at Guantanamo Bay who are hardened Taliban commanders.
Critics of the administration say that price was too high, and they make three other arguments: that the exchange violated a long-standing U.S. policy of refusing to negotiate with terrorists; that this country shouldn’t negotiate with the Taliban because it might legitimize the group in Afghanistan; and finally, that the swift release of the detainees violated U.S. law. Most of these arguments are invalid or overstated.
Undoubtedly there is a risk in releasing the detainees. Sen. John McCain (R-Ariz.) isn’t alone in worrying that they “would have the ability to reenter the fight.” But under the agreement brokered by Qatar, the five men will be prevented from leaving that Persian Gulf emirate for a year and will be subject to monitoring of their activities during that time. Were they to return to Afghanistan later, it’s likely that their movements there also would be followed closely. Finally, unless the U.S. were to assert the right to hold the detainees forever without trial, they would have been released at some point. Why not do it now when it helps to secure the release of an American?
What about the other objections?
The policy of refusing to negotiate with terrorists has been honored as much in the breach as in the observance; a notable example is the 1981 agreement with Iran that secured the release of 52 Americans who had been held hostage after the Iranian revolution. As for negotiations with the Taliban, the U.S. and its allies long have been open to the possibility of an agreement between the Afghan government and elements of the Taliban that would be willing to participate in the political process. In the meantime, the Taliban and the U.S. are in a state of war, and sometimes enemies exchange prisoners.
Critics are on sounder ground in arguing that the deal conflicts with a law requiring the secretary of Defense to give Congress 30 days’ notice before transferring prisoners from Guantanamo to another country. Secretary of Defense Chuck Hagel has contended that the law is trumped by the president’s constitutional authority as commander in chief.
Obama made a similar argument last year when he signed the National Defense Authorization Act that contains the notice requirement and other restrictions on the movement of prisoners from Guantanamo. But if Obama believed, as he said then, that abiding by the law “would violate constitutional separation of powers principles,” he should have vetoed it. As we have argued before, it’s bad practice for a president to sign a law and then question its constitutionality in a signing statement.
Congress is free to press the administration about details of the arrangement that won Bergdahl’s freedom. But the president must be equally free to respond to a diplomatic opening that could mean the difference between freedom and captivity for an American soldier.