While many on Capitol Hill remain furious that the president didn't notify members of Congress in advance of the Bowe Bergdahl prisoner swap, the more critical—and largely unanswered—issue is whether the move marks a shift in U.S. policy involving prisoners held by terrorist organizations.
The White House insists it isn't, although its reasoning hasn't been entirely consistent. But critics of the deal, including some who are former members of the Obama administration, remain worried that the administration has placed a bounty on the heads of Americans overseas—soldiers and civilians alike.
They fear the United States is moving toward a policy such as one held by Israel, one that they view as placing too much value on a single prisoner and incentivizing terror groups to seize Americans as tradeable assets.
"There is a very real risk this will be a negative for the safety of U.S. forces and civilians in the future," said David Sedney, who was the Pentagon's top official for Afghanistan and Pakistan policy from 2009 until last year and who was involved in internal talks over securing the release of Bergdahl from the Taliban.
"In the world, we will be perceived to be inconsistent in our words and actions," by trading five Taliban fighters for Bergdahl, Sedney adds.
His concerns are shared by Republicans such as Rep. Buck McKeon of California, the chairman of the House Armed Services Committee, who views the move as new course in U.S. policy that "will put our forces in Afghanistan and around the world at even greater risk."
But the administration has maintained for days that the swap with the Taliban is in line with America's history of trading POWs during wartime—and is not a departure from a long-stated U.S. stance to not engage with terrorist groups. "An exchange of prisoners is normal in armed conflict, and this is separate and distinct from our policy on not offering concessions to hostage takers," said Caitlin Hayden, spokeswoman for the National Security Council. "Sergeant Bergdahl was not a hostage, he was a member of the military who was detained during the course of an armed conflict."
Hayden said the prospect of incentivizing terror groups to grab Americans was considered during the Pentagon's assessment of the threat posed by the release of the Taliban inmates. Earlier this week, Defense Secretary Chuck Hagel sounded dismissive of the notion. "In war, things are always dangerous and there are vulnerabilities," he said from Afghanistan. "But our record, the United States of America, in dealing with terrorists and hunting down and finding terrorists, is pretty good."
While the White House terms this as a standard prisoner swap, it also has argued that the "unique circumstances" of the deal meant that it did not have to notify Congress of the transfer of the Taliban prisoners from Guantanamo Bay, suggesting that it's a one-off. In that regard, defenders of the deal argue that the legal authority to hold those prisoners was likely to expire at the close of the year once the U.S. winds up combat operations in Afghanistan, making this situation unusual.
The administration has also drawn a sharp line between negotiating to secure Bergdahl's release and its refusal to consider trading assets for other imprisoned Americans overseas. For instance, the State Department this week categorically ruled out any deal that would send convicted members of the so-called Cuban Five back to Cuba in exchange for jailed American Alan Gross, who was a subcontractor for the U.S. Agency for International Development when he was charged with espionage in 2010. "Every circumstance is different," State Department spokeswoman Jen Psaki said.
Some of this is semantics. The Obama administration initially was interested in releasing the Guantanamo prisoners as a show of good faith during peace talks with the Taliban two years ago. In that vein, it has chosen to view the Taliban as a state actor, both as an enemy in armed conflict and a potential part of a future Afghan government. Both characterizations avoid the "terrorist" label.
But, "the Taliban unambiguously engages in terrorist acts," said Benjamin Wittes, a national security analyst with the Brookings Institution. "You can choose to call it whatever you want ... but if the concept of a terrorist group has an objective meaning, the Taliban probably meets it."
Wittes understands the disproportionate nature of the Bergdahl trade, but he wonders where it ends: "Are we in fact like Israel, which will trade 1,000 people for one person or is there some limiting principle?"
The deal has evoked comparisons to the agreement the Israeli government made three years ago to secure the release of Gilad Shalit, an Israeli soldier who was kidnapped by Hamas forces in 2006. After a national outcry, Israel entered into talks with his captors, resulting in a deal that freed 1,027 Palestinian and Israeli Arab prisoners, many of whom had been directly responsible for attacks on Israeli civilians. (Bergdahl, of course, never has held the same kind of standing in the U.S. as Shalit held in Israel, and the White House may have misread public sentiment on the issue, experts say.)
The Shalit deal has led to a slight increase in attempts to abduct Israeli soldiers to be used as assets, Yoram Schweitzer, a former Israeli government counterterrorism official, told National Journal from Tel Aviv. But none have been on the scale of the Hamas operation that took Shalit. "This is not something that changes the situation between Israel and the Palestinians," he said. "There has been a constant agenda of terrorist organizations that surround Israel to kidnap soldiers, even when Israel stood firm and did not capitulate to Hamas demands."
And, Schweitzer adds, Israel's policy with regard to hostages has been misconstrued in the wake of the Shalit deal. "If there is a viable military option, Israel will always take this option," he said. "Whenever there is a situation when there is no military option, then Israel will get into negotiations."
At the same time, the White House's insistence that the U.S. doesn't negotiate with "hostage takers" is a distorted reading of history. Iranian assets were unfrozen as part of a 1981 deal to release the 52 Americans imprisoned in the U.S. Embassy in Tehran. And President Reagan agreed to send weapons to Iran as a part of a deal to free American prisoners in Lebanon.
And there have been other, less-publicized prisoner swaps with terrorist groups on Obama's watch. In 2010, for example, allied forces traded militant Shia cleric Qais al-Khazali, implicated in attacks on U.S. soldiers during the Iraq War, as a part of a deal to secure the release of British civilian Peter Moore.
So the White House may be right in arguing that this isn't a fundamental shift in U.S. policy, but it's also hiding the ball when it says the government doesn't trade flesh with terrorist groups.
"Is this a demonstration project that [taking] U.S. prisoners gives you negotiating leverage?" Wittes asks. "Of course, it is."
The question now is whether the market for that is about to skyrocket. Like it or not, the going rate for an American soldier has just been posted worldwide.
This article appears in the June 6, 2014 edition of NJ Daily.