This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
It would be extremely coldhearted not to feel relief that Sgt. Bowe Bergdahl is back in American hands after being held captive by the Taliban for nearly five years. American soldiers need to know their government will not abandon them if they are taken prisoner, especially with the war in Afghanistan in its prolonged final stage.
Still, Bergdahl's release raises significant concerns, starting with President Barack Obama's decision to ignore a law that required him to notify Congress in advance about the bargain that secured the soldier's freedom, and about how trading five high-value Taliban prisoners from the detention camp in Guantánamo Bay, Cuba, could affect America's anti-terrorism policy.
Congress has long thwarted Obama's pledge to close Guantánamo, which remains a blight on the nation's reputation. As part of their effort, lawmakers used the 2014 defense bill to impose three conditions on the transfer of detainees: the defense secretary must certify that it is in the national interest to make the transfer; steps must be taken to reduce the chances a detainee could pose a future threat; and Congress must be notified of a planned transfer 30 days in advance.
While the public deserves more details, the administration has plausibly argued that the first condition was met. As officials said, the United States has a solemn responsibility not to leave a soldier on the battlefield, even one whose circumstances of capture and detention are unclear. As American forces withdraw, there would have been steadily fewer troops in Afghanistan to look for Bergdahl. Susan Rice, the national security adviser, cited concerns that his health was deteriorating and said his life could have been at risk.
On the second condition, American officials said the five Taliban prisoners, handed over on Saturday to the Qatari authorities who negotiated the deal, would remain in Qatar for a year and that Qatar had given assurances they would not go back to the battlefield during that time. Skepticism on this point is healthy, and it will be up to the administration to make sure that the commitment is carried out.
Where Obama clearly crossed the line was his failure to notify Congress in advance, instead of on Saturday as the exchange was in progress. (Congress had known the deal was under discussion for more than two years.)
When he signed the 2014 bill that imposed the conditions, Obama attached a statement claiming he has the constitutional power to override them. This is no different from similar signing statements by President George W. Bush, although he far exceeded Obama's actions by using a signing statement to a bad end: to justify torturing prisoners. But it still amounts to defying the law. Claims that Congress could not be trusted to keep the operation secret are no excuse.
In addition to returning Bergdahl safely, the deal could have another positive effect if it helps smooth the way for peace talks between the Afghan government and the Taliban. Even so, it is unsettling that five Taliban prisoners were freed in the process. Defense Secretary Chuck Hagel distinguished between negotiating with terrorists and retrieving prisoners of war from enemy hands. Hagel has a point in a murky world where enemies are increasingly nonstate actors. Other countries, including Israel, exchange prisoners. But Obama's decision is likely to make it harder for the United States to implore other countries not to negotiate with terrorists in the future.