Thomas Wilner

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 will be 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 U.S. would be required, as a matter of international law, to release [these Taliban detainees] shortly after the end of 2014, when U.S. 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 U.S. Constitution.