POLITICS

The Bowe Bergdahl Controversy Could Be Politics At Its Very Worst

06/03/2014 06:05 pm ET | Updated Jun 03, 2014
SAUL LOEB via Getty Images

WASHINGTON -- A land speed record must have been broken in the time it took to turn the release of Sgt. Bowe Bergdahl from weekend newsbreak to full-blown political controversy.

In the three days since the Obama administration announced that it would free five top Taliban officials from Guantanamo Bay in exchange for Bergdahl's release, the topic has dominated a White House briefing, shadowed the president on his trip to Europe and overtaken the cable news circuit.

The War on Terror suddenly had its own fantasy league. On Fox News Monday night, the National Review's Rich Lowry called the swap an "astonishing trade" in which the administration gave up "the top five Taliban guys." Sen. Lindsey Graham (R-S.C.) called the five released men "The Taliban Dream Team."

On Tuesday, the wave showed no signs of cresting. The Drudge Report had 17 separate items about Bergdahl, 15 of which were above the fold. Bergdahl was being mentioned in 7,200 tweets per hour. "Fox & Friends" host Brian Kilmeade accused Bergdahl's father of looking like a member of the Taliban, because of the long, unkempt beard he grew in solidarity with his son. And former Rep. Allen West (R-Fla.) has even called for President Barack Obama to be impeached over the matter.

But the gush of commentary obscured the complexity of the story at hand. The various critiques of the administration all ran in wildly different directions. Some clearly need to be addressed, but many others seem based on flimsy foundations, undone by basic counterfactual questions.

Did the Obama administration get fleeced?

This is the most common complaint about the deal. The five Taliban members released from Guantanamo are hardened, top-level officials. Reports suggest that the restrictions being placed on them in Qatar, where they are being sent, will not do enough. Could the administration have held out for more?

The White House contends that given Bergdahl's failing health, it had to act quickly. And even in that case, they got some concessions. The initial demand from the Haqqani network, according to a Feb. 23 BBC report, was "millions of dollars" and 21 Taliban detainees. On "Morning Joe" Tuesday, The Washington Post's David Ignatius suggested that holding out further might have hurt the administration's position.

"It does seem one-sided, although less so than the exchanges the Israelis have made... so there's this precedent for this," he said. "I think it's useful to ask the reverse question. Suppose he hadn't been released, and it's a year from now, and American troops are getting ready to come home, and you have this American sitting there in ever more frequent propaganda videos from the Taliban. The pressure on the president to act in a much more precipitous way would be enormous. So think about the alternative."

But why release Guantanamo detainees at all?

When critics of the president ask this question, they seem to be suggesting that a risky trade-off could have been avoided had Bergdahl been extracted through other means, such as a military-led operation.

Perhaps so, but as shown by the fact that troops died searching for Bergdahl when he first left base, that's a high-risk proposition in its own right. A top Obama administration official told The Huffington Post that a rescue mission was considered, as were other tactics. But going in with military forces would have put other U.S. soldiers in harm's way and there was no guarantee that Bergdahl would be extracted alive.

When Martin Dempsey, chairman of the Joint Chiefs of Staff, said Tuesday morning that "this was likely the last, best opportunity to free him," the key word was "best."

Is this merely a backdoor method of emptying out Guantanamo?

It's no secret that the president wants the detention facility closed, and The Daily Beast's Josh Rogin reported that Republicans on Capitol Hill are concerned that the prisoner exchange was a means to another end. But can detainees be kept there forever?

Ken Gude noted at ThinkProgress that because none of the five prisoners were "facing charges in either military or civilian courts for their actions" and because the war is coming to an end, they had to be released anyway. John Bellinger, a former Bush administration lawyer, made a virtually identical point:

In my view, the U.S. would not be able to hold them forever. Indeed, it is likely that the U.S. would be required, as a matter of international law, to release them shortly after the end of 2014, when U.S. combat operations cease in Afghanistan. The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan.

Why didn't the White House consult Congress beforehand?

Here, the critics seem to have their strongest argument. The law requires the president to give 30 days' notice before transferring detainees out of Guantanamo. And while Obama issued a signing statement challenging the constitutionality of that provision, his prior history questioning the use of signing statements is fairly well established.

The White House has responded to this criticism in a scattershot manner. On Tuesday morning, Caitlin Hayden, a spokeswoman for the National Security Council, said that the advance notice would have interfered with Obama's ability to get Bergdahl home. Because of that, she added, officials had determined that "Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.”

At other points, the White House hasn't even bothered with the legalese, arguing that, in the broadest sense of the word consultation, it had met the requirements. In November 2011, the administration discussed a potential prisoner swap with senior House Republicans. On Feb. 17, 2014, The Washington Post reported the contours of the deal in clear detail. And when talks with the Taliban fell apart, White House Press Secretary Jay Carney told reporters that the administration was still "actively engaged in an effort to see [Bergdahl's] return."

But discussing something publicly in broad terms is a different than consulting lawmakers in private about specific operations. The White House seemed to acknowledge this distinction late Tuesday when top officials apologized to the chair and ranking member of the Senate Intelligence Committee for not having given them prior warning.

Did Bergdahl deserve to be rescued?

No one has actually argued that Bergdahl should have been left behind, left to endure Taliban-style justice for walking off his post, though The New Republic's Brian Beutler has made the case that critics should provide a price of exchange that they would have found acceptable.

The more illuminating question to ask, instead, is what would have happened politically had the White House sat on its hands and not acted. Some of the very Republicans criticizing the president today were imploring him to do more to free Bergdahl just a few months prior. Some even suggested he pursue any means necessary to get him released. Let's say the White House had waited to act in hopes of a better deal -- and never reached one. What then?

Said the Obama administration official: "Imagine the outrage from Republicans if we had left him there."

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