The Truth Behind the Bowe Bergdahl POW Prisoner Swap

A still from a Taliban video shows Bowe Bergdahl Reuters

Commentary about the prisoner-swap negotiated between the United States and the Taliban of Afghanistan has already devolved into the type of bumper-sticker debate that emerges in the era of 140-character analysis on Twitter. On one side, those who condemn the Obama administration for "negotiating with terrorists." (28 characters.) On the other, those who praise it for making sure that "no soldier gets left behind on the battlefield." (47 characters.)

As usual, reality is more complex. There is some to praise, some to condemn and much to wrestle with in the exchange of five Taliban leaders detained at Guantanamo Bay for U.S. Army Sgt. Bowe Bergdahl, an American soldier held by the Taliban for five years. The truth is, anyone who believes this is a simple decision open to immediate criticism or celebration is probably driven by politics, and not knowledge of international or military affairs.

The prisoner swap entails many legal, military and diplomatic issues—what is the Taliban? Does the American military still back the "no soldier left behind" doctrine? Is this deal different from others in the past? Does this instance constitute "negotiating with terrorists" or something more complex? Should peace talks with the Taliban be considered? And finally, who are the prisoners in this instance and does it matter what they did?

Here, in many more than 140 characters, are the four big points at the heart of this case.

1. Challenges From the War on Terror

After 9/11, President George W. Bush made clear that the American response would entail something far different from what had ever been attempted in the past. "This will be a different kind of conflict against a different kind of enemy," he said in a radio address on September 15, 2001. "This is a conflict without battlefields and or beachheads."

Among the issues that made the confrontation different was that this would be a war not against a foreign state, but against a faction of Afghan leaders—the Taliban—which was providing material support to the terrorist organization, Al-Qaeda.

The Taliban controlled about 90 percent of the territory in Afghanistan and in 1996 proclaimed itself to be the ruling government and its founder, Mullah Mohammed Omar, as the country's leader. It declared the country's name to have been changed to the Islamic Emirate of Afghanistan and established a network of shuras—or consultative bodies—which sought the participation of tribal leaders, military commanders and clerics. There was a Cabinet, a security service and a military; the Taliban also appointed governors and administrators of cities and towns. In other words, it had many of the features of a real government.

Had the Taliban followed the rules that would have allowed it to be widely recognized as the government of Afghanistan by the international community, even following its overthrow by allied forces, it still would be an uncontroversial act to negotiate a prisoner exchange. But the Taliban did not take that path.

Only three states—Pakistan, Saudi Arabia and the United Arab Emirates—recognized the Taliban as the legitimate government of Afghanistan. The Taliban's refusal to meet the requirements of its international agreements led other nations, including the United States, to refuse recognition. The United Nations Security Council demanded that the Taliban follow the dictates of numerous treaties by fighting terrorism and recognizing human rights, particularly for women. The United States proclaimed such a commitment would require the Taliban to turn over Osama bin Laden, the Al-Qaeda leader. The Taliban not only failed to comply but did not surrender him even after the 9/11 attacks. Counterterrorism experts in government declared there was scarcely a difference between the Taliban and Al-Qaeda, as each infused the other with members.

Yet still, the determination that the two groups were the same under international law was far from absolute. In a memorandum prepared in January 2002, then-Secretary of State Colin Powell wrestled with the distinction between members of Al-Qaeda and the Taliban when it came to applying the terms of the Geneva Convention on the treatment of prisoners of war. On the first part of that issue—could Al-Qaeda be seen as qualifying for prisoner of war status?—Powell was absolute: no. Members of that group were solely terrorists, a criminal element with no lawful connection to the rules of the international community. On the other hand, he wrote, the status of the Taliban was much more complex, and their potential designation as prisoners of war would have to be determined on a case by case basis. This stemmed from the different roles of the two groups: Al-Qaeda, whatever its role inside Afghanistan, could not be deemed a legitimate government.

By making this distinction—a position ultimately adopted by Bush—then the United States would be preserving its ability to credibly declare captured American soldiers to be prisoners of war. The recommendation, Powell wrote, "maintains POW status for U.S. forces…and generally supports the U.S. objective of ensuring its forces are accorded protection under the [Geneva] Conventions."

So, the American government believes that its actions have given it the legitimate right to claim that its soldiers captured by the Taliban, as Bergdahl was, to be prisoners of war. Prisoner exchanges are negotiated on an ad hoc basis in wartime, but the most familiar context of deals struck between governments is not available in the Afghan war. Without allowing for negotiations with the Taliban, all captured American forces would immediately be sent down a legal black hole under which no means exists—other than the commitment of more soldiers in what might prove to be a fruitless rescue attempt—for their rescue. (The fact that six soldiers had already died in efforts to find Bergdahl does, however, raise the question of how many American servicemen have to lose their lives because of legal complexities created by this nature of warfare.)

2. Does the Military Have to Adopt New Policies?

United States Army personnel are expected to live under the standards established by what is known as the Soldier's Creed, a collection of 13 sentences that are considered so significant that they are required knowledge for any soldier seeking a promotion to sergeant or above. When the words are recited—which is often—soldiers stand at attention in honor of its meaning. Unlike other oaths, this one can be affirmed by both officers and enlisted men alike.

In this context, one sentence is important: "I will never leave a fallen comrade."

This has been consistently applied to war, and is a concept expected to be followed by every level of military leadership, including the commander in chief. This is why, even after Staff Sergeant Keith Matt Maupin was believed to have been killed sometime after his capture in Baghdad, soldiers continued putting their lives at risk while searching for him; his remains were eventually discovered after four years.

The concept of bringing home American soldiers is deemed so important that the military maintains a unit known as the Joint POW/MIA Accounting Command, which is charged with identifying the remains of missing soldiers and getting them back to the United States.

Throughout American history, there have been two means of honoring that commitment by and to the military: armed rescue and negotiations. But does that no longer apply in modern war? In other words, should soldiers be instructed that, because the wars undertaken since 9/11 are not being fought against traditional nation-states, they can only be saved if captured as POWs as part of an armed rescue? Some politicians are already saying they would have used military force to save Bergdahl, but that is quite a naïve commitment. After all, Bergdahl did not have a GPS device attached to him, and the military's efforts at finding him in the past had failed. The trail had gone cold. What, exactly, could the military have done that hadn't already been tried?

There is no question that, by insisting that the United States should never negotiate with a particular type of enemy holding American soldiers, the government would be abandoning the commitment implied by the Soldier's Creed. That is certainly an option—in other words, that the "not leave a fallen comrade" standard be rewritten to adapt to modern times—but soldiers should not be deceived into believing that the blanket commitment reflects American policy.

3. Does History Offer Lessons?

During the Bush administration, lawyers developing policies related to dealings with the Taliban often referred back to the late 18th century and the Barbary pirates of North Africa. These criminal groups were not governments, although when they captured merchant ships and successfully obtained ransoms, the booty and the vessels were often turned over to rulers in Algeria, Tripoli, Morocco and Tunis.

After achieving independence, the United States assumed responsibilities for protecting its own ships from the pirates, a duty that had previously been handled by the British and, in some circumstances, the French. In 1784, Congress appropriated about $80,000 as a tribute to the Barbary nations, in the hopes that this would protect American ships. But the following years, Algerians captured two American vessels and demanded a $60,000 ransom. Thomas Jefferson, then the ambassador to France, vehemently opposed paying, but the American government launched into negotiations for ransom with the Barbary nations that were engaged in this form of terrorism. Indeed, in 1795 alone, the United States paid in excess of $1 million in cash and assets to free sailors captured by pirates.

When Jefferson took over the presidency, he refused to pay any more, a decision that ultimately led to war with the Barbary states. Eventually, during Jefferson's term, a treaty ended the conflict—but it included a $60,000 payment to the ruler of Algiers for each American held hostage.

The lesson here? Even the country's founders wrestled with the conflict of refusing to negotiate with criminals—or those nations that protect the criminals—and standing by American sailors. Some in government fought negotiations as bad policy that encouraged continued criminal acts, others demanded that the country act to save its men and, ultimately, talks took place and some of the Barbary states obtained the cash they demanded.

This is the circumstance in American history that is closest to that presented by the war in Afghanistan, and demonstrates that there simply are no easy answers. Absolutism can conflict with other American values, and how that is addressed presents no simple answers.

Other countries have faced the same conflict and often have adopted the strategy of negotiating. For example, the British denied prisoner of war status to colonists captured during the American Revolution. But still, the two sides negotiated many prisoner exchanges, even for American captives that the British had designated as traitors.

The same has held true for Israel. In 2011, the Jewish nation reached a negotiated agreement with Hamas—a group designated as a terrorist organization—to release 1,027 prisoners, including many terrorists, in exchange for a single Israeli soldier. The deal constituted the largest prisoner exchange ever agreed to by Israel.

The lesson? The Obama administration is far from the first government—be it American or foreign—to have decided to negotiate with individuals it does not recognize as constituting legitimate rulers, or even with groups identified as terrorists. While that doesn't provide absolute justification for doing so, it does underscore that these decisions have, throughout history, proven to be more complex than the absolutists choose to believe.

4. The Specifics in the Bergdahl Case

While Bergdahl himself remains a controversial figure—some critics contend he was a deserter—that is irrelevant to the issues at hand. The United States will not grant the enemy the right to seize and imprison its soldiers on suspicion, and punishment for improper acts—if any—are the responsibility of the American military.

There is no question, though, that the five people released from Guantanamo in exchange for Bergdahl—Mohammed Fazl, Mohammed Nabi, Abdul Haq Wasiq, Mullah Norullah Nori, and Khairullah Khairkhwa—are bad guys. First though: None have been identified as Al-Qaeda members. Rather, in what some may see as hairsplitting, they were part of the Taliban. This is an important distinction based on the analysis in the first section of this piece.

Each man played a governance role within the Taliban. Fazl, for example, was its deputy minister of defense; Nabi, the former chief of Taliban security in Qalat; Wasiq, the former deputy minister of intelligence; Nori, the senior commander in Mazar-i-Sharif; and Khairkhwa, Taliban governor of Herat Province. In other words, these men weren't simply arbitrary terrorists who had set off IEDs or blew up bridges.

However, several of them, according to American intelligence, are vicious murderers. For example, according to a 2008 memorandum prepared for the Commander of the U.S. Southern Command, Fazl has been "implicated in the murder of thousands of Shiites in northern Afghanistan during the Taliban reign. When asked about the murders, [Fazl]…did not express any regret and stated that they did what they needed to do to establish their ideal state." American intelligence also believes that Fazl was involved in the 1998 killing of Iranian diplomats in Afghanistan. Wasiq and Nori, according to American intelligence records, are also deeply implicated in mass slaughters as well as torture.

Nabi's story is also troubling. According to American intelligence records, he worked closely with his brother-in-law, Malim Jan, also known as "the butcher of Khowst" because of his role in massacring some 300 people there. The records show that he was believed to have worked hand-in-hand with Al-Qaeda, and was considered a high risk who was likely to pose a threat to American interests. Khairkhwa appears to engender the least concern; he has not been connected by American intelligence to mass slaughters or torture, but seems to have primarily played roles in meetings between the Taliban and Iranian intelligence. Intelligence records also suggest that he may have been involved in Afghanistan's illegal drug trade.

So why these men? In fact, there appears to be far more at stake here than the return of Bergdahl, and this also may be part of a three-dimensional diplomatic chess game. Their future has been important in negotiations between the Afghan government, the United States and the Taliban in resolving the conflict. Peace talks took place in 2011 and 2012, and—not surprisingly—the future of the men considered to be top Taliban officials was a key sticking point. The question came down not to whether they would be released, but whether they could be transferred to Qatar. In 2012, one of the top aides to the government of Hamid Karzai obtained the five men's agreement to be sent to Qatar, which a spokesman for the Afghan president said might boost the peace process.

It is not surprising, then, that when the five Guantanamo detainees had been freed, they were released in Qatar, where they would remain under house arrest.

It's also not surprising that the whole affair has become a political football.