When is it permissible to negotiate with terrorists? United States’ policy for a long time was that the United States would not engage with terrorist actors. This policy shifted over the weekend. President Obama exchanged five prisoners held at Guantanamo Bay for the last American solider in Taliban captivity in Afghanistan. The partisan breakdown of this atypical move is that Republicans are concerned that the United States has set a price for terrorist action and the Obama administration has broken the law with its prison transfer because the administration is required by law to provide at least 30 days’ notice to Congress before such transfers take place. For the administration, Defense Secretary Chuck Hagel stated the American captive’s life was “deteriorating” and this operation saved his life. Additionally, this action upholds President Obama’s recent pledge for humanitarianism he iterated in his speech at the United States Military Academy’s commencement ceremony.
This situation raises three questions: 1) Is President Obama trying to send a message to Congress for the push back he has received in trying close Guantanamo; 2) is the president trying to appease Pakistani officials who have been negotiating with the Taliban in order to help bolster US/Pakistani relations, and; 3) does the administration weigh humanitarianism over the rule of law?
First, it is unlikely the president is trying to spite Congress, however, with the drawdown of troops in Afghanistan, questions surrounding the future of the Authorization for Use of Military Force (AUMF) pose problems for continued detention at Guantanamo. Legal advisers for the Obama administration have asserted that despite the president’s legal authority to target terrorists absent the AUMF (provided terrorists or other individuals pose and “imminent threat”), if the United States concludes their armed conflict overseas in the War on Terror there would be no legal basis to hold terrorists without charging them. Perhaps this prisoner transfer is an ill-conceived, haphazard, decision for spurring a progressive change at Guantanamo.
Second, Pakistan has been engaged in negotiations with Taliban officials to try and broker some kind of peace agreement given years of unrest in tribal and urban regions of Pakistan (though Pakistan is partly responsible as they used the Taliban as proxies dating back to the Afghan-Russia conflict in the 1980’s.) Pakistan had asked the United States to cease drone strikes within their borders to allow the peace talks to go unfettered. The US/Pakistani relationship has suffered due mostly to the drone campaign and reports of “collateral damage” or civilians killed as a result of drone strikes. It is possible the United States is trying to appeal to Pakistan and contribute to peace efforts. Additionally, it is plausible to raise the question of if the administration sees the Taliban as a legitimate organization given the administration was willing to trade five prisoners for one American. Defense Secretary Chuck Hagel stated in Afghanistan over the weekend that, “this was a prisoner of war exchange.” Hagel also added remarks of wishful thinking stating, “Whether that [the prison transfer] could lead to possible new breakthroughs with the Taliban, I don’t know. Hopefully it might. But we pursued this effort specifically to get Sgt. Bergdahl back.”
Third, it is no secret President Obama’s close national security advisers throughout his presidency have been strong humanitarians. In his speech at West Point last week, his fourth element of American leadership is the “willingness to act on behalf of human dignity.” “America’s support for democracy and human rights goes beyond idealism; it is a matter of national security,” the president said. However, there was a clear violation of the law in that the administration apparently did not notify Congress of the transfer. National Security adviser Susan Rice disagreed on the operation’s legality on CNN’s “State of the Union” on Sunday stating, “The Department of Defense consulted with the Department of Justice and given the acute urgency of the health condition of Sgt. Bergdahl and given the president’s Constitutional responsibilities, it was determined that it was necessary and appropriate not to adhere to the 30-day notification requirements because it would have potentially meant that the opportunity to get Sgt. Bergdahl would have been lost.” Rice also maintained that Congress had been in the loop in the past regarding the possibility of a similar operation and “Congress began to be notified when Sgt. Bergdahl was in American hands which was actually before the prisoners had left.”
The president’s foreign policy continues to anger Republicans and members of Congress as House Intelligence Committee Chairman Mike Rogers (R-MI) called the prisoner swap “dangerous.” As Rogers correctly reiterated, terrorist groups such as the Taliban survive on a kidnap-for-ransom strategy and negotiation is a slippery slope and moral hazard. Senate and House Armed Services Committees Ranking Member and Chairman James Inhofe (R-OK) and Buck McKeon (R-CA), respectively, held in a joint statement, “Our joy at Sergeant Berghdal’s release is tempered by the fact that President Obama chose to ignore the law – not to mention sound policy – to achieve it.” This administration’s actions raise an existential and philosophical question; is preserving the life of an American solider more important than the rule of law? The Obama administration believes they acted within the scope of law but Congress is clearly upset. Also, the administration’s actions this weekend raise questions regarding the future of foreign and terrorism policy after the troop withdrawal from Afghanistan. Aside from smaller operations in the future, there is no clear answer to this question.