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

5.6.14

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us – just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

On Saturday, at the White House, President Obama announced that, in exchange for the release of Sgt. Bowe Bergdahl, the sole US 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 US 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 US 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 US 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 US would be required, as a matter of international law, to release them shortly after the end of 2014, when US 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 US 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 US 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 “US 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 US 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.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here – or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009 (out of the 532 released by President Bush), and the 83 prisoners released from February 2009 to March 2014 (by President Obama), whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files (and for the stories of the other 390 prisoners released by President Bush, see my archive of articles based on the classified military files released by WikiLeaks in 2011: June 2007 –- 2 Tunisians, 4 Yemenis (herehere and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (herehere and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 —1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 – 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis4 Afghans6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland1 Egyptian1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini); July 2010 — 1 Algerian1 Syrian to Cape Verde, 1 Uzbek to Latvia, 1 unidentified Afghan to Spain; September 2010 — 1 Palestinian, 1 Syrian to Germany; January 2011 – 1 Algerian; April 2012 – 2 Uighurs to El Salvador; July 2012 — 1 Sudanese; September 2012 — 1 Canadian (Omar Khadr) to ongoing imprisonment in Canada; August 2013 — 2 Algerians; December 2013 — 2 Algerians2 Saudis2 Sudanese3 Uighurs to Slovakia; March 2014 — 1 Algerian (Ahmed Belbacha).

33 Responses

  1. Andy Worthington says...

    On Facebook, Willy Bach wrote:

    Thanks Andy, good article. Lots to think about. One issue I would want answers on would be this one: “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.”

    So, the US had these guys in their custody for possibly 12 years and failed to mount a case, possibly in the International Criminal Court. It is unconscionable that someone accused of such atrocities should not be put on trial. In the present circumstances, the US should put up or shut up (and time has long past for putting up). Sharing.

  2. Andy Worthington says...

    Thanks, Willy. I agree that the failure to regard these men as possible war criminals, given the allegations against them, reveals America’s disdain for international law, and as evidence, we need only to look at how the US has refused to sign up to the ICC.
    Col. Morris Davis, the former chief prosecutor of the military commissions, explained to Amy Goodman on Democracy Now yesterday how, in terms of what were regarded as crimes against the US (as opposed to crimes against humanity), Fazl and Noori didn’t figure, and nor did the other three men. “[A]s for these five men,” he said, “when I was chief prosecutor, we had screened all of the detainees and we had focused on about 75 that had the potential to be charged with a crime. When I saw the names the other day, I wasn’t familiar with any of these names. So we had more than 12 years – if we could have proven that they had done something wrong, that we could prosecute them for, I’m confident we would have done it, and we didn’t.”
    See: http://www.democracynow.org/2014/6/3/former_guantanamo_chief_prosecutor_defends_american

  3. Andy Worthington says...

    Natalia Rivera Scott wrote:

    Andy, about releases, president of Uruguay said he was going to receive 5 prisoners, and welcome them in his country. Any news about that? Who are they?

  4. Andy Worthington says...

    Hi Natalia,
    Yes the most recent news was that he had offered new homes to six men – four Syrians, the last Palestinian in Guantanamo, and a Tunisian, all men cleared for release years ago, but who can’t be safely repatriated. I’m very disappointed that President Obama hasn’t – so far, at least – accepted President Mujica’s offer.
    I wrote about it here: http://www.andyworthington.co.uk/2014/05/19/uruguays-president-mujica-confirms-offer-of-new-home-for-six-guantanamo-prisoners/

  5. Andy Worthington says...

    Natalia Rivera Scott wrote:

    Thank you, Andy, I’ll read it.
    I really think your work is amazing. I’m trying to read it all!

  6. Andy Worthington says...

    You just made my day, Natalia. I’m so glad when I hear of people really getting into my work!

  7. Andy Worthington says...

    Just confirmed that tomorrow (Friday June 6) I’ll be on Democracy Now! with Amy Goodman – 8am in New York, 1pm in London – to discuss this story.

  8. Andy Worthington says...

    Andy Moss wrote:

    Excellent piece, Andy! Sharing…

  9. Andy Worthington says...

    Thanks, Andy. Much appreciated.

  10. Andy Worthington says...

    Carol Anne Grayson wrote:

    Great Andy as always… well researched and voice of common sense…

  11. Andy Worthington says...

    Thanks, Carol. That’s good to hear!

  12. Andy Worthington says...

    Alan Robert Thompson wrote:

    Mr. Worthington, the work you’ve been doing to publicize the plight of Guantanamo prisoners puts all us silent Americans to shame. Which organizations are active in lobbying for release? My dream would be to get the Cuban government to accept all the prisoners and then shame the president into opening the gate and letting the Red Cross do the rest. My unpopular cause is the assassination of Anwar Awlaki.
    https://www.facebook.com/pages/Impeach-President-Obama-for-Murder/380016545358698
    The president has been reviled for his race and various spurious reasons, and the unjust vituperation against him has done much to silence just criticisms of his actions. I’ve contacted the ACLU, Code Pink, and other organizations, but have received no responses. In you experience, what are the organizations really trying to do something about issues such as conditions at Guantanamo or illegal assassinations such as Anwar Awlaki’s?

  13. Andy Worthington says...

    Thanks, Alan. There are many groups that work to try and get Guantanamo closed, but the main problem we have is the – at best – intermittent interest of the media, the open hostility of so many right-wingers and the right-wing media, and the weakness of some Democrats. I don’t like talk of impeachment myself. Apart from anything else, it’s what the most rabid Republicans are calling for right now regarding the release of the Taliban prisoners. I’d rather see the drone policy discredited and disowned, along with indefinite detention without charge or trial and torture.
    As for your particular cause, the Center for Constitutional Rights works very hard on the drone issue – and the assassination of al-Awlaki – and Code Pink are also very active.

  14. Andy Worthington says...

    Willy Bach wrote:

    Andy, this is what US Marine veteran, peace activist, Vince Emanuele has to say about Bowe Bergdahl:

    “Just for the record, Bowe Bergdahl has more courage and honor than 99% of the veterans I’ve ever served with, met or will meet, during my lifetime. In the end, history will shine a bright light on people like Bowe.
    In the meantime, that knuckle-dragging Navy Seal buffoon from the Mark Wahlberg film, “Lone Survivor,” runs his Hillbilly mouth on Glenn Beck’s radio program… An American hero, indeed.”

    So, by this measure the US got good value from the release of these five Guantanamo abductees. But the government is not going to enjoy what Bergdahl has to tell the US and world public.

  15. Andy Worthington says...

    Thanks, Willy. I was very impressed when I read Bowe Bergdahl’s eloquent condemnation of the Afghan occupation in the late Michael Hastings’ profile in Rolling Stone, and I’m very much hoping that, in time, his will become a powerful voice in the anti-war movement. For now, though, we need to make sure that we keep our voices heard not only about Bowe Bergdahl, but also about the hysteria regarding the release of the Taliban prisoners, and the shameful opportunists trying to use it to shut down any more prisoner releases from Guantanamo. The cynicism of these people – lawmakers, pundits and those right-wingers who pretend to be journalists – is disgraceful.

  16. Andy Worthington says...

    Ann Alexander wrote:

    Thanks for this, Andy. Will share.

  17. Andy Worthington says...

    Thanks, Ann. Much appreciated. Good to hear from you.

  18. Andy Worthington says...

    On Facebook, Carol Anne Grayson wrote:

    US say were worried for Bergdahls safety but they nearly droned him… old article of mine…
    http://londonprogressivejournal.com/article/view/1703/activists-and-afghan-taliban-slate-guantanamo-and-did-us-attempt-to-drone-bowe-bergdahl

  19. Andy Worthington says...

    Thanks, Carol. It’s horrible the way so many hateful people in the US are openly saying that Bowe Bergdahl should have been abandoned because they think he’s a deserter – no charge, no trial, no conviction, just like Guantanamo, funnily enough.

  20. Andy Worthington says...

    Carol Anne Grayson wrote:

    Yes too many appoint themselves as judge jury and executioner without any fact finding themselves lol… he is going to have a rough time on return…

  21. Andy Worthington says...

    I’m very much hoping he hooks up with some supportive anti-war veterans, Carol. I hope – and expect – that his dad will have done his homework.

  22. Andy Worthington says...

    Carol Anne Grayson wrote:

    Bob is very astute and will have action plan … we have been in regular email contact so have a good sense of his thoughts and character… a decent man… He was planning a visit to UK to highlight Gitmo, he said he will be out of commission for a while and we had a lot of work to do… so have no doubt he will continue to be active in future as Bowe progresses…

  23. Andy Worthington says...

    I saw a few days ago that Bob follows me on Twitter, Carol. There’s a very strong message available from Bob and Bowe about the futility of the Afghan occupation and the parallels between Bowe’s imprisonment and the men in Guantanamo, which I hope will be very powerful in time. First, though, Bowe will obviously need time to recover, without being harangued by lunatics …

  24. Andy Worthington says...

    Carol Anne Grayson wrote:

    Yes he knows who does what lol, he will have read your articles.. and Taliban respect him… I was able to forward his messages to them last few months and quietly get updates on Bowe …plus forward any signs of movement from WH on the 5 transfer. We were waiting for a courier with news from 25th April but I did not expect things to move so fast when they did… When I saw White House video I burst out laughing thinking of some of his emails… Obama may not have been hugging him so warmly lol but a father does what he needs to do to get his son back… I appealed to Taliban months ago … they assured me they would treat him according to Islamic principles and kept their word. They had promised to help me… so groundwork has been going on for some time… They went through Qatar and happy…

  25. Andy Worthington says...

    Carol Anne Grayson wrote:

    As for drones some interesting allegations received but how to handle needs careful consideration… will forward article when finished… hope it might shake people up a bit…

  26. Andy Worthington says...

    You are a tease, Carol :-) Seriously, though, looking forward to hearing more.

  27. Andy Worthington says...

    Carol Anne Grayson wrote:

    Yes trolls are out in force lol… been nasty these last few days and most mainstream media just dont have a true picture at all about the months of trust building in advance of US 11th hour appearance … like world war 2 lol… but let them have their day… Re drones seeking legal advice in case of a whistleblower… no power myself to protect anyone

  28. Andy Worthington says...

    Again, very interesting, Carol. Thanks.

  29. Anna says...

    Both Bowe and Chelsea decided they had to follow their conscience and took great risks doing so. Whatever Bowe’s future will look like, he already paid a steep price for his courageous and ethical choice.

    I would imagine that countless family members and friends of other military deployed in Afghanistan or Iraq will have received equally critical mails from their sons, daughters, brothers or sisters as Bowe’s family.

    Wouldn’t it be great if they all would join forces and publish such fragments from the mail they sent/received during the past 12 years, as a sign of solidarity with these two courageous fellow soldiers, so that it would be evident for all, that these two young persons’ misgivings were no exception, except for their uncommon courage in refusing to further participate in the crimes which whey were expected to commit.

    I assume that publishing such letters would not only be of great support to Bowe and Chelsea, but also to those who felt as bad about what they saw and/or did, but for whatever reason did not manage to draw the ultimate consequence.

    Having worked in Afghanistan for over 10 years, I know how well founded Bowe’s despair was and how grateful Afghan people are for such -all too rare- signs that their predicament is being understood, that there are honest people out there who acknowledge not only their suffering but most of all their human dignity.

  30. Sue Olsen says...

    I seem to remember that the Republicans in Congress have been very unwilling to let Obama take any steps to release detainees at Gitmo, denying that any money be used to do so, insisting on plenty of lead time (in which I am sure they could try to sabotage the effort) and overall trying to saddle Obama with Gitmo in order to make his promise to close it look disingenuous. Just one of the many things they can think of to make him “fail” in the public’s eye, which was their stated purpose on the evening of the inauguration. Besides, if Obama had succeeded in closing Gitmo, the full blame would fall on Bush, and by extension, the Republicans. There are those who say that there were things Obama could have done to send detainees home, but was too timid to do so.

    The Republicans will probably start the impeachment drums over this, even if keeping Congress out of the loop on the swap plans was a justifiable and sensible thing. They won’t impeach him for his actions with the “kill list” or any of his more egregious, and undeniably illegal actions. As with Clinton, whipping up people’s emotions is more important than the law.

  31. Andy Worthington says...

    It’s a great idea, Anna. Perhaps you could take this on – search for veterans online who’ve been critical of the occupation, reach out to veteran’s organizations … People would be interested in your perspective and understanding, I think.

  32. Andy Worthington says...

    Thanks, Sue, for your comments. Republicans – and some Democrats – have certainly made releasing prisoners difficult, preventing President Obama from having the funds to open a prison on US soil so the prison at Guantanamo Bay could be closed, and, in recent years, raising hurdles that he could overcome – with a waiver in the legislation – but that was designed to make him unwilling to spend the political capital to do so.
    I hope the impeachment nonsense dies down, but the president’s opponents will presumably continue to oppose anything he wants to do, while – as you say – ignoring his “kill lists” and other dirty wars.

  33. SINCE WE CANNOT TRUST USA MEDIA AND WE CAN’T TRUST CONGRESS: “As U.S. Frees Five Taliban Members, Questions Remain Over Future of Guantánamo” | Eslkevin's Blog says...

    […] In London, where we’re joined by journalist Andy Worthington who recently wrote a piece called, “Missing the Point on the Guantanamo Taliban Prisoner Swap and the Release of Bowe Bergdahl&#8…. He is also the author of, “The Guantánamo Files: The Stories of the 774 Detainees in […]

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