Contributor, The Volokh Conspiracy

Yesterday, the Obama administration carried out its deal exchanging five high-ranking Taliban commanders for captured US soldier Bowe Bergdahl. I do not begrudge the entirely understandable happiness of Bergdahl’s family and friends. Nonetheless, the deal was a terrible decision. For the sake of saving one captured soldier, the administration endangered numerous innocent civilians, as well as other US troops. As the Daily Beast explains, the five released Taliban leaders are hardened terrorist leaders who have killed numerous innocent civilians in the past, and will likely do so again after their release. Needless to say, they are also likely to endanger US and allied troops:

According to a 2008 Pentagon dossier on Guantanamo Bay inmates, all five men released were considered to be a high risk to launch attacks against the United States and its allies if they were liberated….

A senior U.S. defense official confirmed Saturday that the prisoners to be released include Mullah Mohammad Fazl, Mullah Norullah Noori, Abdul Haq Wasiq, Khairullah Khairkhwa and Mohammed Nabi Omari.

While not as well known as Guantanamo inmates like 9-11 mastermind Khalid Sheikh Mohammed, the Taliban 5 were some of the worst outlaws in the U.S. war on terror. And their release will end up replenishing the diminished leadership ranks of the Afghan Taliban at a moment when the United States is winding down the war there.

“They are undoubtedly among the most dangerous Taliban commanders held at Guantanamo,” said Thomas Joscelyn, a senior editor at the Long War Journal who keeps a close watch on developments concerning the detainees left at the Guantanamo Bay prison.

Fazl, for example, was the Taliban’s former deputy defense minister and is wanted by the United Nations for his role in massacres targeting Afghan’s Shi’ite Muslim population….

Most of what I said in criticism of the Israeli government’s 2011 deal trading captured soldier Gilad Shalit for 1000 captured Hamas terrorists also applies to President Obama’s deal. This deal, like the Israeli one, endangers numerous innocent people, incentivizes terrorists to take more hostages, and sets a terrible precedent. Both deals are also unethical because they prioritize the safety of soldiers ahead of that of civilians (though the two deals also endanger soldiers as well). Predictably, some of the Hamas terrorists released by the Israelis have gone back to their old ways. The same thing is likely to happen here, a risk that is only partially mitigated by the requirement that the released Taliban stay in Qatar for one year after they are freed [see UPDATE #2 below].

In fairness to President Obama, his deal is not as lopsided as the one agreed to Prime Minister Benjamin Netanyahu. It exchanges “only” five terrorists for one captured soldier, as opposed 1000. On the other hand, the five terrorist leaders released by Obama are high-ranking leaders, not rank and file terrorists. That makes each of them arguably more dangerous than most of the individual terrorists released by the Israelis.

In defense of the administration, it must also be admitted that Obama is far from the first president to make ill-advised deals with terrorists. For example, President Reagan notoriously exchanged arms for hostages with Iran in the 1980s (which predictably led Iranian-backed terrorists to seize more American hostages). As the similar errors of Reagan and Netanyahu suggest, the mistake made by Obama is not unique to him, or to liberal Democrats. But a president who seeks to bring “change we can believe in” should learn from the errors of the past, not repeat them.

It is worth noting that, although the justification for the deal is concern for the welfare of our soldiers, at least some members of the military have serious doubts about its wisdom.

Finally, the deal is likely illegal, because it violates a 2013 law barring the release of non-American prisoners at Guantanamo unless the president first gives Congress 30 days advance notice, and provides assurances indicating that the released prisoners will not be in a position to threaten the US in the future.

Timothy Sandefur offers a strong critique of the Obama administration’s argument that that provision of the law was unconstitutional. I would add that, in addition to the spending power, this law is authorized by Congress’ Article I power to “make Rules for the Government and Regulation of the land and naval Forces.” The five Taliban prisoners were in military custody at Guantanamo. Regulations governing the treatment and release of prisoners by the military are at the very core of Congress’ power under this clause. When the president acts in his capacity as commander-in-chief of the armed forces, he must obey congressional laws enacted under this power, no less than any other military leader. As liberal Democrats correctly pointed out during the Bush administration, it was illegal for the president to order the use of coercive interrogation methods against prisoners in violation of congressionally enacted statutes barring such torture. The same constitutional rule applies here.

UPDATE: Taliban leader Mullah Omar recently called the deal “a great victory” for the Taliban. I fear that he is right.

UPDATE #2: The released Taliban leaders will be required to stay in Qatar for one year after their release. That makes the deal less bad than it would be otherwise, and I was remiss in not mentioning it in the original version of my post. But the fighting in Afghanistan is likely to continue for a long time to come, and the released Taliban can still return to their terrorist ways after the year ends. Moreover, it is not guaranteed that the Qatari government – which has a very mixed record on terrorism, at best – will actually carefully monitor the released Taliban, even during that one year.

UPDATE #3: I should note that some of the men who served with him claim that Bowe Bergdahl deserted and that his actions cost the lives of several fellow soldiers. If so, that further weakens the case for making a deal that endangers innocent civilians in order to save him. However, nothing in my argument above depends on this point. The deal is still unethical and illegal even if it turns out that Bergdahl is completely blameless.