Over the weekend the government announced that it had negotiated a deal for the release of Bowe Bergdahl, the sole American being held by the Taliban in Afghanistan. In exchange, five Taliban prisoners at Guantanamo will be transferred to Qatar, where their movements will be restricted for a year.
Republicans will now attempt to turn this into a liability for President Obama. As Michael Tomasky put it, this is “the right’s new Benghazi.” So it’s worth looking at their actual arguments. There are four of them, with varying levels of persuasiveness.
1) The first argument is, to put it bluntly, that Bergdahl didn’t deserve to be rescued. The problem here isn’t the facts that support this claim, it’s the conclusion. It’s true that Bergdahl wasn’t the model of a heroic, patriotic soldier. He didn’t get captured while saving his platoon in a firefight. He was disgruntled with the war. He walked off his base, and some of those with whom he served consider him a deserter. According to some accounts he thought he would walk all the way to India, which suggests someone who was not in his right mind.
But the question is, should the government conduct a character study on every American servicemember who gets taken prisoner, and seek the release only of those who are sufficiently virtuous? Do we leave no one behind, or do we leave some behind if they don’t pass the test?
2) The second argument Republicans are making is that we simply shouldn’t negotiate with terrorists. As Mike Rogers, the chair of the House Intelligence Committee, said on Fox News, the problem with the deal is: “You send a message to every Al Qaeda group in the world that there is some value in a hostage that it didn’t have before.” You mean that now, Al Qaeda will realize for the first time that taking an American soldier hostage would be valuable? If only we could have kept that information from them! They never would have known.
This kind of deal is always distasteful and troubling. But it happens frequently. Israel, where security concerns are rather more immediate than they are here, has exchanged thousands of prisoners over the years for a small number of Israelis whom it wanted to retrieve. To gain the release of Gilad Shalit, a soldier held for five years by Hamas in Gaza, Israel agreed to release over a thousand prisoners, including hundreds who had been convicted of involvement in terrorism. Which leads to the next argument.
3) The third argument is that the release of these particular Taliban prisoners is uniquely dangerous. This may be the weakest claim Republicans have. “These are the hardest of the hard core. These are the highest high-risk people,” said John McCain about the five prisoners, adding, “These are really the toughest of the tough.” This is the same John McCain who, according to reporting by the late Michael Hastings, reacted a couple of years ago to the prospect of this deal by shouting: “They’re the five biggest murderers in world history!” That’s the trademark McCain insight for you.
But what exactly does it mean when we talk about these prisoners being “hard core” and posing a risk that is too great for us to take? Do they have some abilities no one else in the Taliban has? Are they particularly clever? Will they change the course of Afghanistan’s future? Do they have super-powers of some sort? From the way Republicans describe them, you’d think we were talking about Magneto and Lex Luthor. But we aren’t.
That isn’t to say the risk in releasing them is zero. The question is whether the risk is acceptably low. The five certainly might end up back in Afghanistan, and they certainly might want to fight the Americans still stationed there (though by the time they’re eligible to go, most of the American force will be gone). But so do thousands of other Afghans. The idea of them walking free might offend us on a moral level, but it’s difficult to argue that they pose a unique security threat to the United States that’s different from any other member of the Taliban.
4) The final objection Republicans have is that President Obama didn’t follow the law in the way the deal was carried out. This is the strongest claim the Republicans have, even if it may be the least flashy or politically potent. The President is supposed to give Congress thirty days notice before the release of any prisoners from Guantanamo. When he signed that law, President Obama included a signing statement indicating that there might be special time-sensitive circumstances in which the 30-day requirement would have to be waived (Marty Lederman explains here).
The question is whether this case qualifies. On one hand, this deal has been discussed for a couple of years, so it wouldn’t appear that there would have been much of a problem waiting another month, even if it would have been a politically difficult month, with lots of Republican objections. On the other hand, once we learn more details it may prove to be the case that secrecy was necessary in order to obtain Bergdahl’s release. But if the administration is going to argue that they had the authority to ignore the 30-day requirement, they’re going to have to explain exactly why — even if it means giving themselves a political headache.