Americans are rightly celebrating over the release of Bowe Bergdahl, the lone prisoner of war from the conflict in Afghanistan.
Legally, though, it’s a mess. Republicans are complaining that the President violated the law in not giving Congress 30 days notification prior to the release. The President for his part doesn’t deny it, but only says that the speed with which the exchange needed to be implemented made the 30-day notice unfeasible. The situation is further complicated by the fact that the five prisoners released in the exchange seem to be pretty dangerous people.
Unfortunately, it may be a long time before the public learns the secret details of the negotiation and the decision process of the Administration, if we ever do. More importantly, the legal and political problems involved in the transfer are symptomatic of some of the thornier issues in modern American politics.
The first of these problems is the legal swamp that is the War on Terror, and the particularly murky moral and legal zone that is the Guantanamo Bay detention facility. But for the cowardice of Congress, all the prisoners at Guantanamo should have been transferred into stateside prisons and tried for their crimes or released. That would have eliminated many of the legal issues involved in the exchange.
The second is a political question. The GOP has become such a nearly nihilistic obstructionist force that even if the Obama Administration hadn’t needed to act so quickly to secure the transfer, giving the House 30 days notice would have been turned into a carnival for political gain in advance of the midterm elections, and likely would have blown the potential deal.
The third is a matter of government secrets. Partially because of the political problem and partially due to an overweening security state, not nearly enough members of Congress are adequately briefed on nearly enough national security secrets. That in turn leads to an inability by the legislative branch to fully hold the national security deep state accountable for wrongdoing, as well as mutual distrust between the branches.
It is highly unlikely that the Obama Administration released men who still posed extremely strong risks to U.S. interests. But without sharing that information with Congress and the American people, and without knowledge of how detainment at Guantanamo has affected the specific prisoners involved, that’s an impossible question for the lay pundit to answer.
In the end there’s no one to trust. It’s bad policy on the merits to simply trust the Executive Branch on its own say-so. But the GOP has been such a bad faith actor that its objections can hardly be seen as more than political gamesmanship—particularly from the same party that idolizes a president who secretly traded missiles to Iran for hostages.
Like so much else, the release will become part of the partisan spectrum: if you watch a lot of MSNBC, you will credit the President for the deft release of an American POW at little cost. If you watch a lot of Fox News you will suspect him of treason at worst and negligence of national security at best.
And that’s a shame. Because issues as important as national security and war and peace should be handled in a much more adult and collaborative manner by the people we pay to run our government.
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