President Obama’s Bergdahl Deal May Put a Bounty on American Troops

The White House says it hasn’t adopted a new policy that could expose U.S. service members overseas to greater risk of capture, but it could well be wrong.

US soldiers patrol near Kandahar Airfield on June 3, 2014. Members of the 1st Battalion, 12th Regiment, 4th Brigade Combat Team, 4th Infantry Division patrolled areas near Kandahar Airfield to protect the base from rocket attacks, and also visited Afghan police and polling stations to check on the security for the upcoming presidential election runoff. 
National Journal
James Oliphant
June 5, 2014, 9:28 a.m.

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.

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