As more and more of the backstory of the US trade of Guantanamo detainees for its soldier, Bowe Bergdhal, emerge, and as the story becomes increasingly politicized, I would say that there are some clear ethical and legal threads that need to be followed.

First, while numerous stories from his military peers are now out there as to how Bergdhal intentionally deserted and thus jeopardized the lives of comrades sent to look for him, I don’t think these stories trump his right to come home.   When other US soldiers were accused of crimes against Iraqi and Afghan civilians, they were brought back to the US to face justice.   The same principle should apply to alleged deserters.  If the phrase “Leave No One Behind” counts, it shouldn’t have moral exemptions.   As the only US soldier to be help captive by the Taliban, his health, which was apparently declining, and the declared intent of the US to withdraw from Afghanistan, made this the right time to bring him home.   If I was Bowe Bergdhal’s father, I would want my son to face military justice in the US rather than to be punished by allowing him to linger in Taliban hands.  There will surely be a Board of Inquiry into his capture, and if the BOI leads to charges and even a conviction for him, better and more just for Bergdahl to be confined in a military prison such as Leavenworth.    It also seems to me to be common sense that when soldiers deploy to future conflicts, they need to know that their country will do all that it can to bring them home, whatever the political costs may be.  

Second, the controversy over the trade of five supposedly high-value captives for Bergdhal, as Amy Davidson writes in The New Yorker, merely remind us of the morally compromised position that the US placed itself in by refusing to treat them as Prisoners of War according to internationally-agreed on Laws of Armed Conflict.

“These five prisoners, known to be Taliban commanders and officials, were ones the Obama Administration had said should be held indefinitely, because they posed a threat. However, it was not prepared to charge them with any crime. One thing that the angry response to the trade revealed is that the implicit definition of “indefinite,” in many quarters, was “forever.” But indefinite means indefinite; when you have what, despite the frippery of various review boards, are essentially extrajudicial imprisonments based on the judgment of the executive, you might have people who get out a lot sooner than one would expect, too. Want to be more sure that the people now at Guantánamo stay prisoners for an extended period of time? Then convict them of something; give them a sentence.

Similarly, Guantánamo’s advocates have long dismissed legal (and moral) doubts by repeating the word “war,” arguing that these are battlefield prisoners. But prisoners of war get released when conflicts end. The main affiliation of these prisoners is the Taliban, not Al Qaeda, and their fight is the war in Afghanistan, which is winding down. (John Bellinger makes this point in a post at Lawfare.) They also get exchanged. One can’t have it both ways: there are laws associated with prisoners of war, too. The phrase “P.O.W.” is not just shorthand hand for “don’t have to go to court.”

Perhaps the Obama Administration did break the law in not notifying Congress before making a prisoner exchange.  I’ll leave that question to my American friends to debate, though I do agree with Davidson that a law apparently designed to keep certain certain people detained forever is a curious sort of law.

0 Responses

  1. Thank you Michael for an excellent post.

    My view is that it is entirely appropriate for Bowe Bergdahl to be exchanged. He was a combatant in a conflict which, while part of the "War on Terror", had the overwhelming hallmark of a conventional (if asymmetrical) military conflict. Just as in Vietnam and in Somali, in my view the US Government was entirely justified in recovering their soldier.

    I also think it is entirely justified that an investigation now is undertaken into the circumstances of Bowe Bergdahl's initial capture. However, in undertaking that investigation and in considering any disciplinary sanctions, I would hope that the US military prosecutors view the alleged offence of desertion in the context of when and where it took place, and then set any penalty in the context of what Bergdahl has already suffered. I don't think that any disciplinary measure can be detached from the context of how he has already suffered.

    Thanks again for a thought provoking post!

  2. Blogger ate my long reply, but I'll summarize:

    I agree with you and Ms. Davidson that the incoherent status of the Taliban and terrorist prisoners at Guantanamo Bay has brought us to where this can be both a good and a terrible decision.

    The statement "leave no man behind" become more nuanced beyond the battlefield. A second issue is what can be done to identify and move disillusioned folks with shifting loyalties to places where their actions can cause less fallout.

    My last point was that your final paragraph touches on what is currently a major crisis in American politics. The lack of balance between the branches, and rule by fiat has become the norm. No one seems interested in fixing the problem, and the acceptance of this as a new way of doing business is really rather frightening.

  3. Thank you all for your comments.
    Sidney, I don't think it's a given that Pfc (as he now wants to be called) Bergdhal will be charged with desertion, but certainly a BOI will be in order. It will be a political football as to whether the DoD wants to discharge him honourably or dishonourably, and the whole politicization of this matter is regrettable. Today the NYT reported that his family have been receiving death threats and that his home town has called off a ceremony in his honour.
    Steve, I agree with you 100% I tremble for my US friends at how dysfunctional your politics has become and it worries me greatly when the military appears to be the only reputable public institution standing. That's frightening indeed, because a future general with man on a horse ideas may not have the self-restraint of a George MacClellan after Lincoln dismissed him