The return of U.S. prisoner of war Bowe Bergdahl in exchange for five Guantanamo-held Taliban of varying importance has become the most important foreign policy story in the country this week. As a result, there has been a lot of great reporting on what the swap does and doesn't mean, how it happened, and how it could affect the war in the future.
Unfortunately, there has also been a lot of reporting that is either sensationalistic, simplistic or straight-up inaccurate. In trying to grapple with how the U.S. conducts matters of war, peace, and international law enforcement, it's important to separate fact from fiction. Below are four examples of things everybody seems to know, which just happened to be either incorrect or far from certain.
MYTH: This sets a dangerous precedent that the U.S. will negotiate with terrorists
In the first minutes after Bergdahl was released on May 31st, various media and political elites took up the all-too-predictable rallying cry that the U.S. doesn't negotiate with terrorists. The claim – in this context – is absurd for at least three distinct reasons. Though the White House recently said the Taliban is on the list of Specially Designated Global Terrorists by executive order, the Taliban is not actually on the U.S. State Department's list of Foreign Terrorist Organizations. The distinction may be somewhat academic, but confusing or conflating the Taliban with Al Qaeda (as John McCain recently did on CNN) is bad analysis and bad policy. The Taliban is primarily a local political and military organization, and has demonstrated little or no interest in attacking U.S. citizens on U.S. soil.
Second, the U.S. – and many other countries – in fact do negotiate with terrorists and other unseemly figures and organizations. This prisoner swap is far from unprecedented, and as President Obama said, this is what happens at the end of a war.
Third, as the Kabul-based journalist (and Rolling Stone contributor) Matt Aikins pointed out, "It's a war, not a hostage crisis, dummies." In a war, it's generally better not to give an enemy an incentive to kill your side's captured soldiers – which would be the perverse outcome of taking a strict "don't negotiate" stance.
MYTH: These five Taliban are the hardest of the hardcore
Just as predictable as the first myth, this one will be even more difficult to destroy. Despite the 13-year occupation of Afghanistan, the U.S. media and political establishment continues to see the country primarily through the black-and-white lens that George W. Bush so clearly laid out: "Either you're with us or you're with the terrorists." One needn't defend the Taliban to acknowledge that political and military allegiances in Afghanistan are often tenuous and shifting, and clear distinctions between friend and enemy are even more fraught in that country (especially under U.S. occupation) than in more conventional conflicts.
A post from the Afghan Analysts Network actually describes all five talibs and their relative significance in the Taliban, and casts serious doubts on the U.S. intelligence that was used to justify their detention.
"Fazl is the only one of the five to face accusations of explicit war crimes and they are, indeed, extremely serious. One would also want to say that Wasiq was deputy head of an agency which carried out torture – except that torture has always been carried out by Afghan intelligence whoever has been in charge and, indeed, this has been no bar to close cooperation with it by the U.S. and other countries since 2001. There is no or little evidence of criminal wrong-doing against the other three men."
The same piece from AAN details how four of the five surrendered at the beginning of the U.S. invasion, "in return for promised safe passage home or had reached out to the new administration in Kabul." In fact, virtually the entire Taliban surrendered within months of the invasion, leaving the U.S. military with a war but not an enemy.
Anand Gopal, who lived in Afghanistan for years and traveled to areas of the country few journalists go, details in remarkable clarity how that happened and then how the Taliban reconstituted itself in his new book, No Good Men Among the Living.
MYTH: Six to eight U.S. soldiers died looking for Bergdahl
Again, this talking point has incredible resonance, because it feels like the kind of thing that really could be true. But as The New York Times has noted, the facts are actually far less clear. Secretary of Defense Chuck Hagel has commented that "I do not know of specific circumstances or details of U.S. solders dying as a result of efforts to find and rescue Sergeant Bergdahl." And blaming Bergdahl's disappearance for every death in Patika province during one of the most deadly periods in the war simply doesn't stand up to close scrutiny. (As an aside, part of the reason we know what we know about Bergdahl's disappearance comes from the Wikileaks trove provided by Army leaker Chelsea Manning – further evidence of how valuable that leak was and continues to be.)
MYTH: The swap shows Obama's willful disregard for the law and his embracing of an imperial presidency
This is a tough one, because by virtually all accounts Obama did violate the law by negotiating Bergdahl's release without Congress' express permission. That's a big deal, and a legitimate criticism of the swap – as opposed to the "don't negotiate with terrorists" line, which is opportunistic, disingenuous and terrible policy. Recent reports from the Associated Press that the Taliban threatened to kill Bergdahl if news of the swap leaked certainly bolster the administration's claims for the need for secrecy (even if they likely wouldn't change the legality of ignoring the law).
But the real problem with seeing the swap as an example of Imperial Obama is that there are so many better examples that highlight his expansive interpretation of executive authority. Take, for instance, the extrajudicial killing of U.S. citizen Anwar al Awlaki in 2011. Though that killing raised considerable levels of concern from human rights groups – and eventually some politicians – the controversy never rose to the level that the prison swap reached almost immediately this week.
Or take an even more troubling and recent example of Obama's vast theories of presidential power – a Congressional hearing wherein two top lawyers couldn't give clear examples of what powers the president would lose if Congress repealed the AUMF (the law passed immediately after 9/11 upon which virtually all military action since has rested). The administration seems to be claiming that under Article II of the Constitution, and under an incredibly broad and expansive definition of self-defense, they could continue to carry out drone strikes in Yemen and perhaps even continue to hold people in Guantanamo Bay even if the AUMF were repealed.
That's all a way of saying: Obama using his claimed powers to free Guantanamo detainees troubles Congress greatly. Using those same powers to detain or kill people, apparently, isn't nearly as concerning.