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The Bergdahl-Taliban Prisoner Exchange

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[The prisoner swap] rips open an issue that we’ve put aside for 10 years, which is that some of the people we have imprisoned could be entitled to some Geneva protections.
-Eugene Fidell, quoted in The Daily Beast, June 2, 2014

Initially, it hardly bubbled up to the surface of American political discussion, but the insistent language by US Defence Secretary Chuck Hagel, that a prisoner exchange had been affected regarding Sgt. Bowe Berghdahl, was something of a minor revolution. “Sgt. Berghdahl is a sergeant in the United States Army. He was a prisoner of war. This was an exchange of prisoners… Again, I remind you that this was a prisoner of war exchange.”

It was made very clear in the exchange brokered between American and Qatari officials with Taliban captors that Berghdahl would go free for five hardened Taliban fighters. Bergdahl had been purportedly captured by members of the Haqqani network operating in the Afghanistan-Pakistan border region on June 30, 2009. National Security Adviser Susan Rice reiterated that, “He wasn’t simply a hostage. He was a prisoner of war.”

Such a move suggested that the current insurgency is, in fact, a state of war. Not that it was ever declared, nor ever will be recognised as such. Formal declarations of war are the stuff of musty chivalric codes and international law texts of the eighteenth century. Modern states prefer violent molestation to announcement, creeping assault to noisy proclamations before firing weapons.

The entire debate has been conflated with that of terrorism, the perversely myopic stance taken by the Bush administration when it decided that punishing the Taliban for misguided hospitality towards al-Qaeda was the way to righteous vengeance. The argument made by various legal counsel to the White House, notably John Yoo, was that the Laws of Armed Conflict drew a distinction between lawful and unlawful combatants. The former are vested with formal governmental authority to engage in hostilities; the latter are not, often deemed outlaws engaged in breaching the rules of international law.

In a co-authored paper for the Virginia Journal of International Law, Yoo argued that, “Members of al-Qaeda and the Taliban militia have chosen to fight in blatant disregard for the laws of armed conflict and are, accordingly, unlawful combatants not entitled to the legal status of prisoners of war under the Geneva Conventions.”

The reasons for evading Article 4 of the relevant Geneva Convention dealing with Prisoner of War status were not merely stone cold Machiavellian. Some seemed to have been plucked from a confused, half-drunk after dinner conversation. Bush’s White House press secretary, Ari Fleischer, showed in February 2002 why every muddled president deserves muddled employees. For one, he feared a monthly stipend would have to be paid from the US treasury if the dreaded article applied. Then came something far more serious. “The United States government would be obligated to give the al-Qaeda or the Taliban detainees, the al-Qaeda terrorists in Guantánamo musical instruments.”

This is Fleischer playing bumbling fool and poor comic. He might have been informed prior to the briefing that the Taliban and various al-Qaeda militants have waged, as they continue to do, a campaign against music and musicians. Given them a musical instrument, and they are bound to reach for the gun.

The designation, officially accepted by the Bush administration towards the Taliban and al-Qaeda combatants, was all too neat, arbitrarily placing a certain group of combatants outside the Geneva Conventions (1949) framework. This, despite the core principle of the four conventions, and their additional 1977 protocols making it clear that every person in enemy hands must have some status in international law – that of a prisoner of war or a non-combatant.

Some have argued that illegal combatants as a term is a misnomer susceptible to abuse. It is true that some distinction is drawn between terrorist fighters who tiptoe around the fundamentals of international law to implement their program, and soldiers of authority dressed in standard fatigues who kill or are killed by more acceptable rules of engagement. According to René Värk, however, this “does not mean that they [illegal combatants] are completely outside the protection of international humanitarian law” (Juridica International, vol X, 2005).

The semantic trick, offered like the head of John the Baptist to Salome and Herodias, placed both the Bush and Obama administrations in a bind. You can negotiate with official authorities you are at war with. You don’t, as per long standing policy, negotiate with those tarred with the terrorist brush. This static position has naturally led to a host of diplomatic perversions, the latest being the Bergdahl exchange. What has just taken place suggests that terrorists can, in fact, be prisoners of war.

The legal brief should simply read, in all its clarity, that the Obama administration is dealing with a rehabilitated enemy, one who has been spiced and revived by the contradictory corpus that are the Geneva Conventions. For five years of Bergdahl’s captivity, notes Josh Rogin of The Daily Beast (Jun 2), “the policy was never to use [prisoner of war] for the missing soldier and now experts are worrying that the Taliban will start calling its captured soldiers ‘prisoners of war’ too.” This is already sending shudders through the political wire. Did those legal eagles get it wrong?

GOP Rep. Mike Rogers, chairman of the House Permanent Select Committee on Intelligence, was happy to stick to the dogmatic line in rubbishing the exchange. “You send a message to every al-Qaeda group in the word that there is some value in a hostage that it didn’t have before.” Conservative commentators such as Wesley Pruden, writing for The Washington Times, argues that Obama “seems determined to empty the prison at Guantánamo Bay five Islamic heroes at a time, if only he can find enough American prisoners of war to make the swaps.”

The patriotic disease (for commentators rather than the sergeant) has also manifested itself, finding in Bergdahl a character who went wobbly when he discovered that freedom land’s objectives were more brittle than first assumed. Writing home, he found his battalion commander “a conceited fool”, and found “the horror that is America is disgusting.” For those worried about this exchange, neither the Taliban, nor Bergdahl, ought to be legitimised.

The broader implication of the Obama administration’s admission is a jarring one for the entire extra-judicial apparatus that continues to plague US security policy. Taliban fighters will be entitled to claim enhanced protections under the Geneva Conventions. They might even, heaven forfend, receive a stipend. The very premise of Guantánamo Bay’s existence, that great sore on the landscape of American jurisprudence, will be further undermined.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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