End 12 Years Of Injustice

Missing the Point on the Guantánamo Taliban Prisoner Swap and the Release of Bowe Bergdahl

The five Taliban prisoners released from Guantanao in a prisoner exchange on May 31, 2014.

The five Guantánamo prisoners released on May 31, 2014 in Qatar, in exchange for the U.S. PoW Bowe Bergdahl.

By Andy Worthington

On Saturday, at the White House, President Obama announced that, in exchange for the release of Sgt. Bowe Bergdahl, the sole U.S. prisoner of war in Afghanistan, held for five years by the Taliban-affiliated Haqqani Network, he had released five Taliban prisoners from Guantánamo to Qatar.

Although the announcement was initially greeted positively, the president was soon under pressure from critics claiming that the five men were "battle-hardened Taliban commanders," as the Washington Post put it, whose release posed a threat to America's national security.

Some of the critical voices also claimed that Bowe Bergdahl was a deserter who should have been abandoned, and others chided President Obama for failing to notify Congress 30 days before the release of prisoners from Guantánamo, as required by the National Defense Authorization Act.

Who are the five men released from Guantánamo?

However, there are problems with all of the criticisms. The claims that the five men were "battle-hardened," for example, are not accurate. One, Khairullah Khairkhwa, had been the governor of the western province of Herat under the Taliban. In February 2011 President Karzai specifically requested his release, and in March 2011 Hekmat Karzai, the director of the Center for Conflict and Peace Studies, a Kabul-based research and advocacy organization, told Al-Jazeera, "His release will be influential to the peace process," adding, "Mr. Khairkhwa is well respected amongst the Taliban and was considered a moderate by those who knew him."

Another of the five, Abdul Haq Wasiq, was described by the US as the Taliban's deputy chief of intelligence, although his classified military file, released by WikiLeaks in 2011, stated that his job "consisted of directing investigations
involving espionage, bribery, internal affairs, and anti-corruption," and that he "also worked with local police forces to resolve other criminal issues."

Another man, Mohammed Nabi Omari, was involved with the Taliban in eastern Afghanistan, but seems to have been included in the negotiations not for his general importance to the Taliban, but because he was involved with the pro-Taliban Haqqani Network, the group that had held Bowe Bergdahl.

The two other men, Mullah Norullah Noori and Mullah Mohammed Fazil, are the only two who fit the "battle-hardened" definition. Both had been military commanders in northern Afghanistan, and were allegedly involved in the mass killings of thousands of Shi'ite Muslims (from the Hazara ethnic group) between 1998 and 2001. These are disturbing allegations, of course, but it should be borne in mind that, like most of the senior Taliban figures the U.S. faced after the invasion in October 2001, their energies, however malevolent, had been exclusively focused on their opponents in Afghanistan, and not on the United States.

Misplaced criticism of the prisoner swap

In addition, two other facts have generally been lost in the criticism of President Obama's actions: firstly, the men were not freed outright in exchange for Bowe Bergdahl, but were transferred to Qatar, where the government has provided assurances that they will not be allowed to travel for a year; and secondly, with President Obama planning a major drawdown of U.S. troops in Afghanistan at the end of the year, it is not unsurprising that moves are being made -- like the prisoner swap -- that may lead to negotiations taking place between the U.S. and the Taliban. It is easy to forget, looking only at the latest storm in the media, but this prisoner swap did not come out of the blue, and has been discussed for the last two years.

In addition, it is also apparent that the drawdown of troops will probably make the ongoing imprisonment of Taliban members untenable, as was explained by John Bellinger, who served as a legal adviser in the Bush administration. On Lawfare, Bellinger wrote, "it is likely that the U.S. would be required, as a matter of international law, to release them shortly after the end of 2014, when U.S. combat operations cease in Afghanistan. The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan."

As for Bowe Bergdahl and the circumstances of his capture, as well as the criticism of the administration's failure to notify Congress of its plans, both topics were addressed on Sunday by defense secretary Chuck Hagel, who said that the operation to free Bergdahl came after intelligence suggested his "safety and health were both in jeopardy, and in particular his health was deteriorating."

As Al-Jazeera described it, the decision "was not relayed to Congress because officials believed Bergdahl’s life would be further endangered." In Hagel's words, "We couldn’t afford any leaks, for obvious reasons." He added that President Obama's decision to order the exchange was made "essentially to save his life," and also explained that administration officials had concluded that the president "had the authority to order the operation under Article 2 of the Constitution."

On Tuesday, in Warsaw, during a trip to Poland to discuss Eastern European security, President Obama also spoke about the prisoner swap, its timing and the role of Congress. "We have consulted with Congress for quite some time about the possibility that we might need to execute a prisoner exchange in order to recover Bergdahl," he said. "We saw an opportunity, and we were concerned about Bergdahl’s health. We had the cooperation of the Qataris to execute an exchange, and we seized that opportunity." He added that "the process was truncated because we wanted to make sure we would not miss that window."

What the prisoner swap means for the men still held at Guantánamo

For the men still held at Guantánamo, and particularly for the 78 men (of the remaining 149 prisoners) who have been cleared for release but are still held (75 in January 2010 by President Obama's Guantánamo Review Task Force, and three in recent months by Periodic Review Boards), the release of the five Taliban prisoners will only reinforce the notion that, to get out of Guantánamo, you need to be perceived as something other than insignificant. Since 2007, they have seen men charged in the military commission trial system be convicted, or accept plea deals, and be sent home, while they remain trapped, with no end in sight to their long ordeal. 58 of these 78 men are Yemenis, still held because of U.S. fears about the security situation in their home country.

President Obama needs to find the courage to break this deadlock, as it is profoundly shocking that the U.S. continues to hold -- apparently indefinitely -- men it said it no longer wanted to hold.

Others, too, have reason to be upset about the release of the Taliban prisoners -- men like Abu Wa'el Dhiab, the Syrian who is on a hunger strike and being force-fed despite being cleared for release. He and other cleared prisoners who cannot be safely repatriated would like President Obama to take up the recent offer by President Mujica of Uruguay to offer them new homes, and it is unclear why this has not yet happened. Also in need of serious action on the president's part is Shaker Aamer, the last British resident in the prison, who was first cleared for release under President Bush in 2007.

Right now, however, those who must be feeling a sense of abandonment the most keenly are the Afghans left behind, whose stories I discussed in two articles in 2012, when the prisoner swap was first mooted, "The 'Taliban Five' and the Forgotten Afghan Prisoners in Guantánamo," and "U.S. in Talks to Return the 17 Afghan Prisoners in Guantánamo."

Four of these men were cleared for release by the task force in 2010, including two men profiled here at "Close Guantánamo" -- Shawali Khan and Abdul Ghani. Eight other Afghans are still held who have not been cleared for release, although some of them are also the victims of exaggeration and misplaced intelligence, like Obaidullah, for example, whose wrongful imprisonment we highlighted in 2012.

I hope that the media and politicians soon move on from their untenable positions regarding the release of prisoners from Guantánamo, and that the plight of the cleared prisoners who are still held will be noticed. I also hope that time is running out for those who believe that Guantánamo is a place where they can hold people forever without due process, and that John Bellinger is correct to point out that, with the drawdown of U.S. troops at the end of the year, it will no longer be acceptable under international law for Taliban prisoners to continue to be held.

Even if arguments can be made for continuing to hold prisoners allegedly involved with Al-Qaeda, this, realistically, should mean that the justification for holding almost all the men still held at Guantánamo will evaporate in December.

President Obama may have begun to address this with the prisoner swap. Now he needs to move swiftly to release the 78 cleared prisoners, and to work out how few of the remaining prisoners can legitimately be held when the military excuse for detention comes to an end -- and how to tell Congress.