What do you give up to get back one of your own? Talk about a hard national security choice. The decision to trade five senior Taliban detainees at Guantanamo for Private First Class Bowe Bergdahl has it all. I don't envy the people who had to make this decision.
The United States is not Israel---a fierce military culture that manages, somewhat adorably, to go to pieces every time a single soldier goes missing. Israeli political culture, which creates such tough negotiators in nearly all other respects, melts into a mass of pushovers when matters involve getting back even one of their lost soldiers. The Israelis will trade hundreds of prisoners in exchange for one, in exchange for prisoners' bodies, in exchange for mere information about what happened to soldiers. These things happen in Israel, and nobody talks much about the incentive structures such trades set up. The name "Gilad Shalit" was known to every man, woman in child in Israel. And it was always clear that Israel would trade a huge amount for him.
The name Bowe Bergdahl was, it is safe to say, not known to every man, woman, and child in the United States. Yet when the time came, our leadership did a very Israeli deal: We traded five senior-level Taliban detainees for a single POW. The people we gave up may well end up posing a threat going forward, and we seem to have security guarantees as to their travel only for a year. The President had to defy an act of Congress to get it all done. Yet like the Israelis, we were undeterred by the incentive structures such a deal would create to kidnap more Americans. The justification? We have to get our people back. And it was urgent because Bergdahl's health was declining.
Making this deal all the more remarkable was the small matter of who Bergdahl really was. While the facts of his disappearance are not entirely clear at this stage, at least some of those who served with him do not regard him as an honorable soldier to whom we owe some great debt. Nathan Bradley Bethea, writing in the Daily Beast, describes him as a "deserter" and describes in painful detail how "soldiers from his own unit died trying to track him down":
On the night prior to his capture, Bergdahl pulled guard duty at OP Mest, a small outpost about two hours south of the provincial capitol. . . .
The next morning, Bergdahl failed to show for the morning roll call. The soldiers in 2nd Platoon, Blackfoot Company discovered his rifle, helmet, body armor and web gear in a neat stack. He had, however, taken his compass. His fellow soldiers later mentioned his stated desire to walk from Afghanistan to India.
The Daily Beast’s Christopher Dickey later wrote that "[w]hether Bergdahl…just walked away from his base or was lagging behind on a patrol at the time of his capture remains an open and fiercely debated question.” Not to me and the members of my unit. Make no mistake: Bergdahl did not "lag behind on a patrol,” as was cited in news reports at the time. There was no patrol that night. Bergdahl was relieved from guard duty, and instead of going to sleep, he fled the outpost on foot. He deserted. I’ve talked to members of Bergdahl’s platoon—including the last Americans to see him before his capture. I’ve reviewed the relevant documents. That’s what happened.
In other words, we gave up five significant Taliban figures in exchange for one person who---at least according to his fellows---wandered off from duty.
But lest it seem that I am blasting this deal, I'm really not. After all, John Bellinger is correct that "it is likely that the U.S. would be required, as a matter of international law, to release [the Taliban detainees] shortly after the end of 2014, when U.S. combat operations cease in Afghanistan." We are, after all, winding down this conflict, and the authority to detain Taliban forces---as opposed to Al Qaeda forces---won't last that much longer than the end of combat. So what we may have traded here is one POW deserter (assuming that's what Bergdahl was, for a moment) in exchange for hastening the release of five Taliban by an indeterminate number of months.
Was it the right move? I don't know. I certainly don't think, as Marty Lederman put it on Saturday, that it is "truly wonderful news." Ask me in a couple of years whether it was a good idea---when we know if any constructive dialog with the Taliban developed out of these contacts, when we know how the US draw-down in Afghanistan went, when we know whether and how the released detainees reengaged with the fight, and when we know exactly what the circumstances of Bergdahl's disappearance really were. The people who did this deal didn't have the luxury of remaining agnostic about its merits that long. I will not criticize them.
But I am anxious. And I will say two things: First, we should not say we don't negotiate with terrorists, because we evidently do. And second, the Israeli zeal to get back their people, understandable though it is, has to have a limiting principle. In Israel, it has none. That is not a good road for the United States to go down.