Please Read Tom Wilner’s Op-Ed About the Bowe Bergdahl/Taliban Prisoner Swap

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.

It has been almost three weeks now since President Obama announced that five Taliban prisoners had been released from Guantánamo in exchange for Sgt. Bowe Bergdahl, the sole US prisoner of war in Afghanistan, but the fallout from that prisoner exchange continues to cast a shadow over grown-up discussions about why the prison must be closed, and why every day that it remains open is a profound shame.

Below is an op-ed by Tom Wilner, the co-founder of the  “Close Guantánamo” campaign, which was recently published on the Warscapes website, following up on articles by Andy Worthington, the other co-founder of the “Close Guantánamo” campaign, on PolicyMic, here and for Al-Jazeera.

The response to the prisoner exchange — which has been cynical, opportunistic and disgraceful — is well exposed by Tom in his article, in which he reminds readers of the limits of the detention powers used at Guantánamo (the Authorization for Use of Military Force), with particular reference to the Supreme Court’s ruling about detention powers, back in June 2004, when Justice Sandra Day O’Connor ruled that the US “may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who ‘engaged in an armed conflict against the United States.’”

Drawing on statements by Jack Goldsmith, formerly a legal adviser to the Bush administration, and Ben Wittes of Lawfare, Tom also points out that the legal justification for holding Taliban prisoners will evaporate by the end of the year, as the US begins drawing down its troop presence in Afghanistan.

Tom also takes issue with those who have suggested that Bowe Bergdahl should have been abandoned in Afghanistan, because of claims that he was a deserter — claims that, it should noted, have not been tested through a proper investigation. According to Tom’s interpretation of US values, because Bergdahl is an American citizen, “no one seriously suggests that we should have left him behind with the Taliban” — even though that is not what some people have been saying.

Most importantly, as we look to the future, and try to see beyond the posturing and threats by a small minority of lawmakers, who are trying to make it impossible for President Obama to release any more prisoners from Guantánamo, Tom reminds us of the 78 men still held — of the 149 men in total — who have been cleared for release, mostly since January 2010, but have not been released, and also points out how most of the 71 others “were also associated with the Taliban, although at much lower and less significant levels than the men just released.”

As Tom also explains, the cleared prisoners continue to be held because they cannot be used as bargaining chips, and “because of demagoguery on one side of the political aisle and a lack of courage on the other.” As he also points out, the president “has the authority under existing law” to transfer other prisoners, and he should do so without further delay.

A Prisoner Swap and the Law
By Thomas Wilner, Warscapes, June 14, 2014

Every day brings new criticism of the Obama Administration for the deal it struck to bring Bowe Bergdahl home. How could the president trade with the Taliban? How could he possibly give up five hardened Taliban fighters for one suspected deserter? A pretty “lopsided trade,” as Michael Gerson called it in The Washington Post.

But under the laws of war, we would have had to release those Taliban fighters soon anyway, and without getting anyone back in return.

There is little doubt now that Sergeant Bergdahl is not the unadulterated hero that the Rose Garden press conference implied or that Susan Rice stated in her TV interviews. He appears to be a confused young man who has some serious explaining to do. But he is also an American citizen, and no one seriously suggests that we should have left him behind with the Taliban. We should all be glad that he [is] back in the United States where he can explain.

What did we give up to get him back? Well, actually, not too much. The prisoners we exchanged were members of the Taliban. At least two of them were Taliban military commanders — as one of my friends described them, “bad-ass Taliban guys.” But that does not mean they are international terrorists, like members of al-Qaeda. Rather, they were members of a political, religious party fighting for control of Afghanistan. There is a big difference between international terrorists, who are bent on killing innocent civilians, and the Taliban, who are fighting for control of a country. The Taliban fighters were, and for the moment still are, our enemies in combat. Under the laws of war, while we are engaged in hostilities against them, we are entitled to detain them so that they don’t return to the conflict. When we exit that conflict, however, the law says that we must release them.

Former Supreme Court Justice Sandra Day O’Connor laid out the standards for detaining these men ten years ago in her opinion in Hamdi v. Rumsfeld:

[The] detention of individuals [who fight against the United States in Afghanistan as part of the Taliban], for the duration of the particular conflict in which they were captured, is [a] fundamental and accepted incident to war … It is [also] a clearly established principle of the law of war that detention may last no longer than active hostilities …The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If … United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of [the law of war].

Based on these principles, as John Bellinger, President George W. Bush’s Legal Advisor at the State Department, pointed out, “it is likely that the US would be required, as a matter of international law, to release [these Taliban detainees] shortly after the end of 2014, when US combat operations cease in Afghanistan.”

The Brookings Institute’s Ben Wittes, a commentator not inclined to liberal views, agreed: “We are, after all, winding down this conflict, and the authority to detain Taliban forces — as opposed to Al Qaeda forces — won’t last that much longer than the end of combat. So what we may have traded here is one POW deserter (assuming that’s what Bergdahl was, for a moment) in exchange for hastening the release of five Taliban by an indeterminate number of months.”

Not a bad deal after all.

That doesn’t mean, of course, that these Taliban men are not dangerous. In fact, they may be a heck of lot more dangerous than most of the others at Guantánamo. That is one of the sad ironies. Indeed, there has always been a strange paradox about Guantánamo — those charged and convicted of war crimes (e.g., David Hicks and Salim Hamdan) are sent home for time served, whereas the others, who are far less significant — and are not, and can never be, charged with any crime — are left rotting at the prison year after year without hope.

More than half of them — 78 of the 149 men detained at Guantánamo today — have been cleared for transfer for almost five years, but they remain stuck at Guantánamo. Many of the other 71 not cleared are there because they were also associated with the Taliban, although at much lower and less significant levels than the men just released. After twelve long years, they see no way out and go on hunger strikes out of desperation. But no one cares. They are too insignificant to be the subject of a prisoner exchange, or of a trial, or of anyone’s attention. This is the real shame of Guantánamo, the real injustice.

These men remain at Guantánamo not because they pose a security risk to the United States — as mentioned, most were cleared for release long ago — but because of demagoguery on one side of the political aisle and a lack of courage on the other.

President Obama acted practically and with courage in transferring five Taliban men out of Guantánamo to get Sergeant Bergdahl home. The sky didn’t fall. He has the authority under existing law to transfer the others. He should use that authority — beginning with the many who have been cleared — and close this prison once and for all. Our country will not fall; indeed, it will be much safer because we will be shutting down a place that continuously undermines our credibility around the world and remains a chief recruiting tool for terrorists. Guantánamo hurts our nation every day it remains open.

Thomas B. Wilner is head of the International Trade & Investment Practice at Shearman & Sterling LLP in Washington, DC. He is counsel of record to Guantánamo detainees in Rasul v. Bush, decided in June 2004, in which the Supreme Court ruled that the detainees have the right to habeas corpus, and counsel of record in Boumediene v. Bush, decided in June, 2008, in which the Supreme Court held that the Guantánamo detainees’ right to habeas corpus is protected by the US Constitution.

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).

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