AMERICA - Sgt. Bergdahl / POW Swap

"Sorting Murky Issues on the POW Swap" by Robert Farley, with Eugene Kiely, FactCheck.org 6/6/2014

A lot of gray area surrounds the political rhetoric about the White House’s decision to swap Sgt. Bowe Bergdahl for five Taliban figures detained at Guantanamo.

Did the administration violate a decades-old policy of “not negotiating with terrorists?”  Was it a simple swap of prisoners of war?  And did President Obama violate the law by failing to notify appropriate congressional leaders of the deal 30 days in advance?

We set out to fact-check some of these issues and found the reality isn’t as clear as the rhetoric would lead you to believe.  We’ll lay out some of the facts and let you draw your own conclusions.

Negotiating with Terrorists?

In a Sunday show appearance, Sen. Ted Cruz said the Obama administration violated a decades-old policy of “not negotiating with terrorists” in the swap for Bergdahl.  Secretary of Defense Chuck Hagel, meanwhile, said that “we didn’t negotiate with terrorists,” describing the deal as a “normal process” for getting POWs home.

Here’s Cruz’s version on ABC’s “This Week”:

Cruz, June 1:  You know, Ambassador Rice basically said to you, yes, U.S. policy has changed.  Now we make deals with terrorists.  And the question going forward is, have we just put a price on other U.S. soldiers?  What does this tell terrorists, that if you capture a U.S. soldier, you can trade that soldier for five terrorists we’ve gone after. …  And the idea that we’re now making trades, what does that do for every single soldier stationed abroad?  It says the reason why the U.S. has had the policy for decades of not negotiating with terrorists is because once you start doing it, every other terrorist has an incentive to capture more soldiers.

Cruz was one of a number of Republicans who accused the White House of negotiating with terrorists.  Others included Rep. Jason Chaffetz and former Vice President Dick Cheney.

Hagel refuted that characterization on NBC’s “Meet the Press.”  He said, “Well, first of all, we didn’t negotiate with terrorists.”

The question of whether the U.S. negotiated with terrorists begins, of course, with whether the Taliban is a terrorist organization.  All five of the detainees in the exchange were members of the Afghan Taliban.  And the Afghan Taliban is not on the State Department’s list of foreign terrorist organizations.

In fact, the U.S. government had been trying for years to include the Afghan Taliban as part of the political reconciliation plan for Afghanistan.  So if members of the Afghan Taliban are terrorists, the U.S. government had been negotiating with them for years.  Last year, the U.S. made a diplomatic push to include the Afghan Taliban in the reconciliation process by encouraging the opening of a Taliban office in Qatar, but the effort quickly unraveled.  The Afghan Taliban suspended direct talks with the U.S. in 2012, and according to the State Department, direct communication has not resumed since.

But while the Afghan Taliban is not on the list of foreign terrorist organizations, the Pakistani Taliban, Tehrik-e Taliban Pakistan (TTP), is.

In 2010, the State Department added the Pakistani Taliban to the list, saying the group of Islamist militants has a “symbiotic relationship” with al Qaeda, providing mutual cooperation and a “safe haven” to al Qaeda along the Afghan-Pakistani border.  According to the State Department, TTP is responsible for a 2009 suicide attack on a U.S. military base in Afghanistan, which killed seven U.S. citizens, and an April 2010 suicide bombing against the U.S. Consulate in Peshawar, Pakistan, which killed six Pakistani citizens.  The group also was behind the failed attempt to detonate an explosive in Times Square in 2010, the State Department says.  The TTP, which emerged in 2007, has been a frequent target of the American drone campaign.

The Afghan and Pakistani Taliban share a common ideology and worldview, but they are distinct groups with different leadership and priorities.

As a result, Mark Denbeaux, director of Seton Hall Law’s Center for Policy & Research, argues to us in an email, “negotiating a prisoner exchange with the Afghani Taliban does not constitute ‘negotiating with terrorists’ under current U.S. policy.”

But while the Afghan Taliban is not on the United States’ official list of terrorist groups, it has been accused of at least aiding and abetting terrorists.

In 2001, after the Sept. 11 attacks, a Bush administration State official described the Taliban as a group that financed terrorists with drug money.  Testifying before a House subcommittee, William Bach of the Bureau of International Narcotics and Law Enforcement Affairs, stated the drug trade brought in at least $40 million to the Taliban.  He went on to cite a United Nations report that said “funds raised from the production and trade of opium and heroin are used by the Taliban to buy arms and war materials and to finance the training of terrorists and support the operation of extremists in neighboring countries and beyond. …  And the Taliban, we know, has given aid, training, and sanctuary to various Islamic terrorist and separatist groups in Afghanistan, including Osama bin Laden’s al Qa’ida group.”

And in 2014, the Obama administration’s State Department added an Afghan Taliban deputy governor to the list of terrorists:

Press release, U.S. Department of State, Jan. 7:  The Department of State has designated Qari Saifullah as a Specially Designated Global Terrorist under Executive Order (E.O.) 13224, which targets terrorists and those providing support to terrorists or acts of terrorism.  Qari Saifullah is the Taliban shadow deputy governor and an operational commander in Zabul Province, Afghanistan.  As an operational commander, Qari Saifullah has used Taliban fighters to organize terrorist activities against the Government of Afghanistan and Coalition Forces in eastern Zabul Province.

Asked last June if the Taliban was a terrorist group, State Department spokeswoman Jen Psaki admitted, “Well, I’m not sure how they’re defined at this particular moment.”

Further complicating the issue is the fact that when Bergdahl left his post in Afghanistan’s Paktika province in June 2009 and fell into Taliban hands, the New York Times reports, “he was then moved across the border into the tribal areas of Pakistan, where he was held by the Haqqani network.”  The Defense Department says Bergdahl was held there by the Haqqani Network for almost five years.  The Haqqani Network was added to the State Department list of foreign terrorist organizations in September 2012.

So, even if one argues that the swap was arranged with the Afghan Taliban, the group has been clearly identified as financing terrorism and at least one of its leaders is on the terrorist list.  Nonetheless, as we noted earlier, the Afghan Taliban itself is not on the U.S. list of terrorist organizations.  And in that June press conference, Psaki noted that the Afghan Taliban was a “key part” of the reconciliation process and “moving towards a more stable Afghanistan.”  To be clear, the negotiated swap — performed with the government of Qatar acting as intermediary — was not a negotiation with al Qaeda, the terrorist group responsible for the Sept. 11 attacks.

Army Lt. Col. Todd Breasseale, a spokesman for the Department of Defense, says Hagel’s comment had little to do with State Department designations of terrorist groups, and rather was based on the fact that the U.S. conducted all of its negotiations directly with the government of Qatar, which acted as an intermediary.  The Qatari government made the necessary security assurances that any threat the detainees might pose could be handled, Breasseale said.

White House National Security Advisor Susan Rice made a similar distinction when she was asked on CNN’s “State of the Union” on June 1 whether the U.S. had negotiated with terrorists.

“We actually negotiated with the government of Qatar, to whom we owe a great debt,” Rice said.

Despite this parsing, the deal had to satisfy both the U.S. and the Afghan Taliban, which was the chief negotiator of the swap.

Negotiating with Terrorists:  It Happens

In his comments, Cruz also claimed “the U.S. has had the policy for decades of not negotiating with terrorists.”  Bruce Hoffman, director of Georgetown University’s Center for Security Studies, told USA Today that was “repeated as mantra more than fact. …  We have long negotiated with terrorists.  Virtually every other country in the world has negotiated with terrorists despite pledges never to.”

Consider, in 1981 in order to facilitate the release of dozens of Americans held hostage in Iran, President Jimmy Carter issued a series of executive orders (12276 to 12284) releasing Iranian assets that had been frozen in U.S. banks, as well as one indemnifying Iran from potential lawsuits arising out of the hostage-taking.  Previously, in his 1980 State of the Union address, Carter referred to the Americans being held as “innocent victims of terrorism.”

And then there’s the Iran-Contra affair, in which President Ronald Reagan approved the covert sale of arms to Iran in an attempt to free seven hostages being held in Lebanon by a group with Iranian ties.

For what it’s worth, State Department Deputy Spokesperson Marie Harf said in a press conference on June 4 that the State Department doesn’t claim that it won’t “negotiate” with terrorists, but rather that it does not make “concessions” to terrorists.  She said the swap was not a concession to terrorists, but rather was part of a longstanding, historical precedent of exchanging prisoners “during a time of war.”

Harf added that the five detainees transferred to Qatar were “unlikely” to be added to the group of detainees who have been referred for prosecution.  “So it is quite likely that eventually, in line with our commitment to close Guantanamo Bay, they would be transferred,” Harf said.  “So let’s say it was important for us to get Sergeant Bergdahl home.  Let’s say these guys may have eventually been transferred somewhere anyways.  I think many of us would make the argument – I would make it – that we should get something for them.”

A ‘Normal’ Swap of POWs?

Speaking on NBC’s “Meet the Press,” Hagel not only flatly denied that the U.S. negotiated with terrorists, but called the swap part of “a normal process in getting your prisoners [of war] back.”

Hagel, June 1:  Well, first of all, we didn’t negotiate with terrorists.  As I said and explained before, Sergeant Bergdahl is a prisoner of war.  That’s a normal process in getting your prisoners back.

The U.S. has certainly done prisoner exchanges with more traditional war foes.  However, Hagel’s comment suggests a clean swap of prisoners of war, but the situation is more complicated than that.

For starters, the U.S. does not consider detainees held at the Guantanamo Naval Base in Cuba to be prisoners of war.  The State Department calls the detainees “enemy combatants.”  In fact, the U.S. specifically declared in 2002 that “Taliban detainees are not entitled to POW status. …  The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan.  Moreover, they have not conducted their operations in accordance with the laws and customs of war.”

That complicates any assertion that this was a simple swap of prisoners of war.

According to Denbeaux, the Seton Hall law professor who has represented Guantanamo prisoners, the five detainees have “admitted to aiding or commanding troops on behalf of the Taliban in the Afghani Civil War prior to the U.S. military’s arrival in the region,” but “at no point have they been accused of terrorist activities against American civilians or other American non-military targets.”

Denbeaux, June 3:  The five released detainees are or were high-ranking members of the Taliban, and have admitted to such.  At no point have they been accused of terrorist activities against American civilians or other American non-military targets.  They have been accused and have admitted to aiding or commanding troops on behalf of the Taliban in the Afghani Civil War prior to the U.S. military’s arrival in the region.  Two of the five do not deny participation in religious wars in which the Taliban was responsible for massacring “thousands” of Shiites.  The massacres, which the United Nations determined constituted war crimes, apparently occurred prior to the U.S. occupation of Afghanistan.  All five were determined by military personnel to have a high intelligence value regarding Taliban activities.  Their intelligence value would presumably be exhausted at this point since all five were captured over a decade ago.

While Hagel’s comment may be technically accurate in that the U.S. says it did not directly negotiate with terrorists, that claim and his assertion that the swap was part of a “normal process in getting your prisoners back” gloss over the complicated nature of the conflict in Afghanistan.

Was the Swap Legal?

The National Defense Authorization Act for Fiscal Year 2014 (NDAA) makes clear that the secretary of defense must notify appropriate committees of Congress no less than 30 days before the transfer of a Guantanamo detainee. See Sec. 1035 (d).

When Psaki, the State Department spokeswoman, discussed the possibility of a swap for Bergdahl in a press conference in June 2013, she said the White House would “make any such decisions in consultation with Congress and according to U.S. law.”

Sen. Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, said conversations with appropriate congressional members about a potential swap were held 18 months ago, but, she told the New York Times, “there were very strong views, and they were virtually unanimous against the trade.”

This time, Feinstein and other appropriate congressional leaders did not get notification about transfer of the detainees — which was necessary to complete the deal — until it was already taking place.  And so some Republican leaders have accused the Obama administration of violating the notification law.

But that’s not entirely clear.

In a statement released when he signed the NDAA on Dec. 26, Obama foreshadowed his arguments for not needing to notify Congress in some cases.

Obama, Dec. 26, 2013:  Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles.  The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.

In a statement released on June 3, Caitlin Hayden, the National Security Council spokeswoman, argued that it was lawful within the president’s executive powers for the swap to move forward without congressional notification because of a “unique set of circumstances” — namely that Bergdahl’s deteriorating health was such that a delay could “endanger the soldier’s life” (a claim that some have disputed).

That same day, during a press conference while traveling in Poland, Obama was asked whether he had broken the law regarding the 30-day advance notice.

Obama, June 3:  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 Sergeant Bergdahl.  We saw an opportunity.  We were concerned about Sergeant Bergdahl’s health.  We had the cooperation of the Qataris to execute an exchange, and we seized that opportunity.  And the process was truncated because we wanted to make sure that we did not miss that window.

Whether the White House’s interpretation is correct remains a matter of debate in the legal community.