In the last week, the Obama administration has rolled out a laundry list of reasons to justify swapping five senior Taliban officials for Sgt. Bowe Bergdahl, the only American prisoner of war in Afghanistan. None of the arguments are proving very persuasive with the public: 43 percent of Americans say Obama made a mistake in releasing the militants in exchange for Bergdahl, compared with 34 percent who support the decision, according to a new USA Today poll.
But the best defense of the president’s prisoner swap is one you’ve probably never heard. That’s because the administration isn’t bandying it about in public. Instead, the White House is sharing it privately with the members of Congress invited to classified, closed-door briefings on the case.
It goes like this: Under the laws of war, the legal authority to detain unarmed forces ends when the conflict ends. Last month, President Obama announced that the United States will cease all combat operations in Afghanistan by the end of 2014. At that time, Washington will theoretically lose the legal standing to continue to detain Taliban officials who have not been convicted of a crime. Therefore, it makes sense to give up five Taliban prisoners in exchange for an American POW now rather than releasing those same militants in December without getting anything in return.
"I don’t know why the White House wasn’t making this argument a week ago," said Ben Wittes, a senior fellow at the Brookings Institution and editor of the "Lawfare" blog. A number of Democratic lawmakers espoused that legal view after a briefing with White House officials on Monday.
"When the war is over, we would’ve had to release them anyway," Rep. Jerrold Nadler (D-N.Y.) said late Monday night after leaving a classified briefing with top administration and intelligence officials. "I would’ve been upset if the president hadn’t made the call."
Democratic Rep. Zoe Lofgren of California agreed. "Since international law allows you to hold enemy combatants during a time of war, when the war’s over, you can’t keep them," she said. "It may be the issue is whether we’re releasing him in May to get our soldier back or in December and not get our soldier back."
The White House did not respond directly to a question about why it hasn’t been pushing this explanation more forcefully in public. However, National Security Council spokesperson Caitlin Hayden confirmed that the administration believed it would lose some legal authority to detain Taliban militants when the U.S. combat role in Afghanistan ends.
"The United States continues to have the authority under both domestic and international law to detain individuals who are part of al Qaeda, the Taliban, and associated forces so long as we are in an armed conflict with those groups," she said. "When the armed conflict with the Taliban ends detention would likely no longer be authorized for individuals detained purely on the basis of their status as Taliban members."
Hayden’s remarks do leave a potential loophole. Washington plans to leave 9,800 troops in Afghanistan through the end of 2015 to train and advise Afghan security forces and conduct counterterrorism operations. Wittes, the Brookings fellow, says the White House could argue that it still had forces undertaking missions against Taliban targets, which would mean its authority to hold onto militants from the group wouldn’t necessarily lapse. Those residual forces are scheduled to leave Afghanistan after a year, however, so that legal justification would disappear by the start of 2016 anyway.
Another caveat, Wittes said, is the widely recognized ability for countries to have "wind-up detention authority," a fancy way of saying that the administration could have a window to gradually release detainees, rather than simply letting all of them walk out the door immediately.
"It’s not like you snap your fingers and all of a sudden you have to open the prison gates," said Wittes. "There’s some time you have to wind down."
Hayden confirmed that the White House believes it has this authority. "The executive would … have a limited ‘wind up’ authority to ensure the safe and orderly transfer of any detainees subject to repatriation or resettlement," she said. However, even by her admission, that authority would be "limited."
Although it’s unclear why the administration isn’t pushing this line more forcefully, it may be reluctant to box itself in legally on the occasion that it does try to retain Taliban officials beyond 2014. But that’s just a guess. In any event, with the polls beginning to turn against the White House, it may want to reconsider making the case. "Ultimately, if you’re serious about ending the war, one consequence of that is you’re going to free Taliban prisoners," said Wittes.