Prisoner Swap Part of Long Tradition, DOD Counsel Says

By Claudette Roulo

American Forces Press Service

WASHINGTON, June 11, 2014 – The exchange that led to the return of Army Sgt. Bowe Bergdahl is part of a tradition of prisoner exchanges between opposing forces during wartime, Defense Department General Counsel Stephen W. Preston told members of Congress today.

During a hearing called by the House Armed Services Committee to discuss the prisoner swap, Preston explained that it wasn’t necessary to classify detainees as prisoners of war to make them eligible for such an exchange.

“What we had here were detained combatants held by opposing forces in the same armed conflict,” he said.

“Now, it is true that the Taliban is not the conventional nation state that has been party to conventional armed conflict in the past,” Preston said. “But it's not the character of the holding party, it's the character of the detainee that inspires and motivates our commitment to the recovery of service members held abroad.”

The exchange doesn’t set a precedent, he added, because a long tradition of prisoner swaps already existed at the time of the exchange.

A potential exchange of the five Taliban detainees for Bergdahl’s release was first discussed with Taliban representatives in late 2011, and Congress was briefed on the dialogue in November of that year, Defense Secretary Chuck Hagel told the committee members.

After sporadic discussions between the United States and Taliban representatives broke down in March 2012, the government of Qatar offered in September 2013 to act as an intermediary, he said.

“But there was never a point in time where, either directly or through the Qataris, we were negotiating with Haqqani,” Preston said. “There were no demands made or concessions made by or to the Haqqanis as far as I'm aware of, period.”

Hagel told Congress that a proof-of-life video was received in January that showed Bergdahl’s physical and emotional health to have deteriorated considerably in comparison to earlier videos. Bergdahl’s condition in the video intensified the discussions with Qatar about security assurances if Taliban prisoners were to be placed in their custody, the defense secretary noted.

As discussions with the Qataris wrapped up -- but before any agreement was signed, Preston said -- the department sought authoritative guidance from the Justice Department on the legal and constitutional issues around the requirements for Congressional notification.

Section 1035 of the 2014 National Defense Authorization Act required that several congressional committees be notified at least 30 days before any transfer of prisoners from Guantanamo Bay. However, the section does not provide for time-sensitive negotiations, the general counsel said.

With only a small window of opportunity to rescue Bergdahl, and with negotiations in an extraordinarily fragile state, “the administration determined that it was necessary to forego the full 30-day formal notice to the eight committees,” Preston said.

The concern was that delaying the transfer for 30 days to notify Congress “would scuttle the deal and could possibly further endanger … Bergdahl,” he said.

Less than 96 hours passed between the signing of the agreement on May 27 and the actual prisoner exchange on May 31, Preston noted.

The president has a constitutional duty to protect American citizens, the general counsel said, and when this duty conflicts with a statute, the statute must yield, “either as a matter of interpretation or through the application of separation-of-powers principles.”

Preston said in response to questioning that it is not true that the government will be obligated to release Guantanamo detainees who were captured in Afghanistan when the combat mission there ends this year. Both the Authorization for the Use of Military Force Against Terrorists and international laws governing armed conflict provide the government with the authority to hold these detainees until the cessation of hostilities with the Taliban and al-Qaida, he said.

“There will come a point in time where the armed conflicts we're engaged in with the Taliban and al-Qaida and their associates come to an end, and at that point, the law of war rationale for continuing to hold these unprivileged belligerents would end -- unless there were some other basis for continuing to hold them, such as prosecution,” Preston said.