Worth Repeating: Amy Davidson on the Bergdahl Trade

As more and more of the backstory of the US trade of Guantanamo detainees for its soldier, Bowe Bergdhal, emerge, and as the story becomes increasingly politicized, I would say that there are some clear ethical and legal threads that need to be followed.

First, while numerous stories from his military peers are now out there as to how Bergdhal intentionally deserted and thus jeopardized the lives of comrades sent to look for him, I don’t think these stories trump his right to come home.   When other US soldiers were accused of crimes against Iraqi and Afghan civilians, they were brought back to the US to face justice.   The same principle should apply to alleged deserters.  If the phrase “Leave No One Behind” counts, it shouldn’t have moral exemptions.   As the only US soldier to be help captive by the Taliban, his health, which was apparently declining, and the declared intent of the US to withdraw from Afghanistan, made this the right time to bring him home.   If I was Bowe Bergdhal’s father, I would want my son to face military justice in the US rather than to be punished by allowing him to linger in Taliban hands.  There will surely be a Board of Inquiry into his capture, and if the BOI leads to charges and even a conviction for him, better and more just for Bergdahl to be confined in a military prison such as Leavenworth.    It also seems to me to be common sense that when soldiers deploy to future conflicts, they need to know that their country will do all that it can to bring them home, whatever the political costs may be.  

Second, the controversy over the trade of five supposedly high-value captives for Bergdhal, as Amy Davidson writes in The New Yorker, merely remind us of the morally compromised position that the US placed itself in by refusing to treat them as Prisoners of War according to internationally-agreed on Laws of Armed Conflict.

"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.”

Perhaps the Obama Administration did break the law in not notifying Congress before making a prisoner exchange.  I’ll leave that question to my American friends to debate, though I do agree with Davidson that a law apparently designed to keep certain certain people detained forever is a curious sort of law.