FacebookTwitterGoogle+RedditEmail

The Bergdahl-Taliban Prisoner Exchange

by

[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

More articles by:

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

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

June 27, 2017
Jim Kavanagh
California Scheming: Democrats Betray Single-Payer Again
Jonathan Cook
Hersh’s New Syria Revelations Buried From View
Edward Hunt
Excessive and Avoidable Harm in Yemen
Howard Lisnoff
The Death of Democracy Both Here and Abroad and All Those Colorful Sneakers
Gary Leupp
Immanuel Kant on Electoral Interference
Kenneth Surin
Theresa May and the Tories are in Freefall
Slavoj Zizek
Get the Left
Robert Fisk
Saudi Arabia Wants to Reduce Qatar to a Vassal State
Ralph Nader
Driverless Cars: Hype, Hubris and Distractions
Rima Najjar
Palestinians Are Seeking Justice in Jerusalem – Not an Abusive Life-Long Mate
Norman Solomon
Is ‘Russiagate’ Collapsing as a Political Strategy?
Binoy Kampmark
In the Twitter Building: Tech Incubators and Altering Perceptions
Dean Baker
Uber’s Repudiation is the Moment for the U.S. to Finally Start Regulating the So-called Sharing Economy
Rob Seimetz
What I Saw From The Law
George Wuerthner
The Causes of Forest Fires: Climate vs. Logging
June 26, 2017
William Hawes – Jason Holland
Lies That Capitalists Tell Us
Chairman Brandon Sazue
Out of the Shadow of Custer: Zinke Proves He’s No “Champion” of Indian Country With his Grizzly Lies
Patrick Cockburn
Grenfell Tower: the Tragic Price of the Rolled-Back Stat
Joseph Mangano
Tritium: Toxic Tip of the Nuclear Iceberg
Ray McGovern
Hersh’s Big Scoop: Bad Intel Behind Trump’s Syria Attack
Roy Eidelson
Heart of Darkness: Observations on a Torture Notebook
Geoff Beckman
Why Democrats Lose: the Case of Jon Ossoff
Matthew Stevenson
Travels Around Trump’s America
David Macaray
Law Enforcement’s Dirty Little Secret
Colin Todhunter
Future Shock: Imagining India
Yoav Litvin
Animals at the Roger Waters Concert
Binoy Kampmark
Pride in San Francisco
Stansfield Smith
North Koreans in South Korea Face Imprisonment for Wanting to Return Home
Hamid Yazdan Panah
Remembering Native American Civil Rights Pioneer, Lehman Brightman
James Porteous
Seventeen-Year-Old Nabra Hassanen Was Murdered
Weekend Edition
June 23, 2017
Friday - Sunday
Jeffrey St. Clair
Democrats in the Dead Zone
Gary Leupp
Trump, Qatar and the Danger of Total Confusion
Andrew Levine
The “Democracies” We Deserve
Jeffrey St. Clair - Joshua Frank
The FBI’s “Operation Backfire” and the Case of Briana Waters
Rob Urie
Cannibal Corpse
Joseph G. Ramsey
Savage Calculations: On the Exoneration of Philando Castile’s Killer
John Wight
Trump’s Attack on Cuba
Dave Lindorff
We Need a Mass Movement to Demand Radical Progressive Change
Brian Cloughley
Moving Closer to Doom
David Rosen
The Sex Offender: the 21st Century Witch
John Feffer
All Signs Point to Trump’s Coming War With Iran
Jennifer L. Lieberman
What’s Really New About the Gig Economy?
Pete Dolack
Analyzing the Failures of Syriza
Vijay Prashad
The Russian Nexus
Mike Whitney
Putin Tries to Avoid a Wider War With the US
FacebookTwitterGoogle+RedditEmail