The following is a guest post from Professor Eugene Kontorovich (Northwestern Law; Institute for Advanced Studies)
Prisoner trades and the case for Gitmo
A recent revelation provides an important new perspective about the utility of extended detention at Guantanamo Bay. The Obama Administration, it turns out, has been holding talks with the Taliban to exchange some detainees for an American soldier Sgt. Bowe Bergdahl, captured in Afghanistan in 2009.
Few Americans were aware that the Taliban are holding a U.S. POW, let alone the possibility of a trade. This had been a secret until his family chose to publicize it earlier this month, apparently to pressure the administration. The negotiations between Washington and the Taliban over a prisoner swap puts the Guantanamo question in a better light – regardless of whether one thinks such a swap is advisable in this case. At the same time, it suggests unexpected problems with congressional restrictions on prisoner transfer.
First, the possibility of exchanges tends to deflate the oft-voiced fears about endless detention, about a prison with no way out. The idea is that what makes the “War on Terror” different is that an undeclared war also ends without a declaration, or never at all. Yet when there is an organized party that holds prisoners and is willing to negotiate their release, the war is not so different after all. Prisoners have traditionally been detained not only to keep them from rejoining the battle, but also to trade for prisoners held by the other side. For this purpose, considerations about the relative dangerousness of individual detainees are beside the point. Most individual POWs are non-dangerous also, but are traded rather than released.
Furthermore, the potential of a prisoner trade shows the superiority of detention at Gitmo to the likely alternatives. If the Guantanamo detainees had simply been released or turned over to third countries, they obviously would not be available to trade. Similarly, if detainees were tried and convicted before regular civilian courts, they could not simply be released by the Defense or State Department Officials. Rather, they would require a full pardon from the President. Using the pardon power is politically sensitive. It would make a prisoner swap – otherwise a routine or mid-level military decision – a direct political vulnerability for the president, who would be pressured by victim families. And in an election year, conservatives would argue the president is “forgiving” convicted terrorists. (In Israel, by contrast, many convicted terrorists have been released in swaps, but the pardon power lies with the president, an otherwise ceremonial and non-renewable role, as opposed to the prime minister.)
To be sure, there appears to only be one serviceman held by the Taliban, and a couple hundred detainees at Guantanamo. But precedent suggests such exchanges are often highly disproportionate. Again, Israel recently traded over one thousand prisoners for captured soldier Gilad Shalit, and previous Israeli exchanges had also been massively lopsided. The Taliban seems to be far more reasonable in their demands, but that does not make the larger number useless from an exchange perspective.
The possibility of prisoner swaps also highlights problems with legislative restrictions on transferring detainees. The 2011 Defense Authorization Act requires the Secretary of Defense to certify a variety of facts about the non-dangerousness of detainees to be released. Some of these requirements could not be certified with a straight face, or in good faith. Similarly, the requirements seem to omit the possibility of swaps, where the detainee is released to the custody of a hostile entity. Consider the requirement to certify that the received entity “has agreed to share any information with the United States that (A) is related to the individual or any associates of the individual; and (B) could affect the security of the United States, its citizens, or its allies.” Fat chance that.
The ability to trade foreign prisoners for U.S. servicemen is a venerable, well-established aspect of conflict. To the extent Congress prevents the President from executing such trades (though it is of course phrased as a purely funding measure), it raises constitutional questions about interference with the core of the Commander-in-Chief role.