The Obama administration's decision to release Sgt. Bowe Bergdahl from prison in exchange for five high-value Guantanamo inmates remains one of the most controversial topics in American politics. It touches a lot of hot-button issues: respect for POWs, the administration's Afghanistan policy, Guantanamo Bay, and legal constraints on the president in the war on terrorism.
Here's your guide to all of the details of the Bergdahl controversy, from whether he was a traitor down to the current political fight surrounding his release.
1. Was Bowe Bergdahl a deserter?
At this point, basically everyone agrees that Bowe Bergdahl walked away from his post. The official story is that Bowe Bergdahl disappeared on patrol in Afghanistan in 2009, but his unit actually wasn't patrolling that night. Bergdahl's unit was chronically lax about security. Both intimates and an internal Pentagon report concluded that Bergdahl simply strolled off.
There's an open question, though, as to whether he planned to come back. A classified military report found that Bergdahl had a habit of taking unscheduled walkabouts. According to the New York Times, he sometimes left his training base "to see a sunrise or sunset." Internal Taliban communications suggest that they captured Bergdahl within or around a day after his disappearance, so it's possible that he was captured during what he planned to be a short expedition.
On the other hand, there's also evidence that he planned to desert — that is, leave his unit and never come back. The best source here is Michael Hastings' fabulous 2012 Rolling Stone feature on Bergdahl. According to Hastings, Bergdahl came into the war thinking of it as something like a grand adventure. That didn't survive contact with reality. "I am sorry for everything," he wrote in an email to his parents just before he disappeared. "There are a few more boxes [of my stuff] coming to you guys." That sure reads a lot like someone saying their last words before they plan to disappear off into the Afghan wilderness.
2. Was he a traitor?
Some people accuse Bergdahl of something worse than desertion. They allege that he actually intended to switch over the Taliban's side.
The evidence here is somewhat thin. It's true that Bergdahl wasn't thrilled with the United States; his last note to his parents said that "the horror that is America is disgusting." But most people with dim views of the United States don't end up fighting for the Taliban.
Sgt. Evan Buetow, Bergdahl's unit leader, claims to have heard "radio chatter" from the Taliban that an American was seeking them out. Afterwards, "all the attacks were far more directed." The implication is that Bergdahl provided intelligence to the Taliban.
But most of what we know about Bergdahl's time with the Taliban suggests he wasn't there by choice. US defense officials told NBC that he was "tortured" and "locked in a small cage." Taliban fighters say he escaped for three days, and fought his captors when they found him. Bergdahl also describes himself as a prisoner in publicly released videos during his time in Taliban custody.
It's possible both narratives have elements of truth to them. Bergdahl may have provided intelligence to the Taliban, but done so under duress.
3. Did Bergdahl get Americans killed?
In a three week period roughly two months after Berdahl disappeared, six soldiers from Bergdahl's battalion died. Some critics allege that Morris Walker, Clayton Bowen, Kurt Curtiss, Daryn Andrews, Matthew Martinek, and Michael Murphrey died looking for Bergdahl.
Nathan Bradley Betheaw a former battalionmate of Bergdahl's, was the first to make the charge. According to Bradley, these soldiers all died on missions that were part of the hunt for Bergdahl. Other soldiers in the battalion find his account plausible. Bethea also suggests two other soldiers, Aaron Fairbairn and Justin Casillas, died in an ambush that wouldn't have happened if airplanes hadn't been diverted to the hunt for Bergdahl.
At the same time, US combat deaths were increasing across Afghanistan at the time as the 2009 troop surge intensified. The Pentagon says there were actually more surveillance aircraft in the area at the time because of the search for Bergdahl. And these eight deaths amount, according to the New York Times, to every US death in Paktika Province (where Bergdahl disappeared) from July to September 2009. A Reuters report concluded that the deaths happened on missions related to the Afghan election, and after "the period of intensive ground searches had already ended."
4. Do the released Taliban members threaten Americans?
Probably not, but it's possible. Here's a short set of bios of the so-called "Taliban 5" — you can find a very detailed history from Kate Clark at the Afghanistan Analysts Network here.
- Mullah Mohammad Fazl: A famous Taliban leader and former chief of armed forces for the group. There's evidence that he's directly responsible for mass murder of unarmed Afghan civilians in both 1999 and 2001 Taliban offensives.
- Mullah Norullah Noori: A fairly high-level Taliban operative, he led the organization's Northern governance zone and was the governor of Balkh province.
- Khair Ulla Said Wali Khairkhwa: Former Taliban Minister of the Interior. The most senior Taliban member on this list, but, according to Clark, was known as a relative moderate inside the militant group. Allegedly linked to the opium trade.
- Abdul Haq Wasiq: Former deputy chief of the Taliban's intelligence apparatus.
- Mohammed Nabi Omari: A comparatively minor Taliban official from Khost province, but he's actually more important to the Haqqani Network — a militant group affiliated with the Taliban that has its own command structure.
None of these folks have well-demonstrated links to al-Qaeda or any other group that targets the US homeland. Some internal Guantanamo assessments allege these connections but, according to Clark, the "many of the allegations are unsubstantiated and bizarre, showing a poor knowledge of the Taleban and Afghanistan before 2001."
The deal to free Bergdahl mandates that they stay in Qatar for a year, which means that none of the released Taliban members will have much time on the battlefield before US troops exit Afghanistan for good in 2016.
The most likely scenario for them threatening Americans is if they somehow break that deal, evading US intelligence monitoring and returning to the battlefield ahead of schedule.
5. Do the released Taliban members threaten Afghans?
According to Anand Gopal, an expert on the Taliban at the New America Foundation, "of the five released Taliban," he writes, "only 2 have the potential to make an appreciable impact on the battlefield: Fazl & Noori...Khairkhwa isn't a military commander, and the other two are mid-level."
Presumably, that means Fazl and Noori could help the Taliban commit attacks on the Afghan National Army and civilians. The key question about Fazl and Noori going forward, then, is how they'll integrate with the modern Taliban. Both of them were detained in 2001, so they haven't had an organizational role in the Taliban in well over a decade. Will they be mesh well with the way the organization is structured today?
It's hard to say. The Taliban is a loose, shifting network of militant groups, and a lot has changed since Fazl and Noori's detention. But there's definitely a risk that their return helps the Taliban hurt Afghans.
6. Why are people saying the deal was illegal?
Section 1035(d) of the 2014 National Defense Authorization Act (NDAA) says the president "shall notify" Congress "not later than 30 days before the transfer or release" of any Guantanamo Bay inmate. President Obama didn't notify Congress before he freed five Taliban prisoners from Guantanamo Bay in exchange for prisoner of war Bowe Bergdahl's release from captivity. Seems simple enough: Obama broke the law.
However, it's much more complicated than that. The Administration, through a signing statement and subsequent legal statement, argue that Congress didn't intend for the law to cover a prisoner exchange. This claim is "not a ridiculous argument, but it's weak," according to University of Chicago law professor Eric Posner.
Arguably, there's a stronger claim that what Obama did was legal and what Congress did was illegal. Congress regulating prisoner exchanges violates Article II of the Constitution, which gives the President exclusive "commander in chief" power during wartime. "It's actually quite a hard legal issue, with few real precedents," according to Harvard Law's Jack Goldsmith.
Indeed, Constitutional experts generally say there's no obvious right answer to this question. And the Supreme Court will never hear the case: no one will have standing to challenge the deal to release Bergdahl because no single person can show they were individually harmed by it.
7. Does freeing Bergdahl mean Obama can close Guantanamo whenever he wants?
Almost certainly not. As my colleague Max Fisher explains, releasing inmates from Guantanamo is really difficult. Among other things, they legally must be released to countries that won't torture them. They also can't just be dumped; they need to go to a country that's willing and capable of taking in people who might be dangerous. That's a limited list.
Nor does Obama's legal justification for the 30-day requirement arrogate him the powers to simply ignore Congress' limits on closing Guantanamo. "The White House, whether for legal or political reasons, is trying to articulate a very exceptional, almost unique set of circumstances for why their interpretation in this case creates an exception or implied exception to the statute," New York University law professor and Just Security editor Ryan Goodman says.
Even the broader Article II argument only concerns prisoner exchanges. And there aren't any more US POWs to trade the Taliban in exchange for Guantanamo releases.
8. Did Republicans want to leave Bergdahl to rot in Afghanistan?
No. The Republican critique centers on the idea that the price for his release was too high, not that Obama was wrong to make some kind of deal for him. Secondarily, they also argue that he should stand trial as a deserter if the evidence supports it.
The best articulation of the conservative position comes from Peter Feaver, a former Bush administration foreign policy official and current Duke University professor. "In terms of prisoners released, Obama gave the Talilban the maximum he could of their original demand (they asked for a sixth prisoner, but he died in the interval)," Feaver writes. "The Taliban clearly think they got a very good deal."
According to Hillary Clinton's memoir, the Taliban had been demanding Guantanamo prisoner releases for at least 3.5 years before the deal happened. So it's pretty plausible to say that Taliban got what they wanted That's the core point of contention between the White House and Congressional Republicans.
9. What's the next stage of political controversy here?
House Republicans have already held hearings and come away frustrated that the Obama administration told them nothing new. A closed door briefing only made Republicans angrier, as they say the administration told them that Secretary of Defense Chuck Hagel, rather than the president, agreed on the deal. Hagel himself had previously said "the president made the ultimate decision."
Meanwhile, a recent CBS poll suggests the debate isn't going well for the administration. 56 percent of Americans think "the US paid too high a price to secure Bergdahl's release." A plurality, 45 percent, "disapprove of the deal that saw him released." 37 percent approve.
Combine a coterie of angry House Republicans with poll numbers that look bad for the administration, and you have a recipe for continued controversy. It seems likely now that Republicans will continue congressional investigation and possibly campaign against the Bergdahl release.
10. What does Miss America have to do with this?
More than you'd think. On May 10th, pageant judge Ian Ziering asked Miss Louisiana, Brittany Guidy, what she thought of the deal.
Her answer was borderline incoherent:
I am glad that we got our guy back. However, I do not feel it is right that we subject ourselves to these acts of terrorism. I do agree with our guy being back, but, however, I do not think we should subject ourselves. Thank you.
It drew wild applause. Here's the video:
11. How is Bergdahl doing now?
Not well. Bergdahl remains at a military hospital in Germany, and apparently is refusing to speak to his family. Bergdahl apparently is having difficulty speaking English, which could be evidence of serious trauma during captivity. It's not clear when he'll return to the US, but the plan is for him to be flown to the San Antonio Medical Center when he's ready.
So far, military officials have yet to ask him about the circumstances in which he disappeared. This is quite important, as if he tells them he was planning to desert, they have to say something. This could lead to a trial.
12. Why are Bergdahl's parents an issue in the controversy?
Bergdahl's parents took a lot of steps to try to get him released while he was imprisoned, including reaching out to the Taliban. Take this now-deleted tweet from father Bob Bergdahl to a Taliban spokesman, for instance:
You could see how that could be controversial. On the other hand, this was a father trying to convince the Taliban to free his child. Fox News' Bill O'Reilly went on an extended rant against Bob Bergdahl, including saying his large beard means he "looks like a Muslim:"
It is Robert Bergdahl, the father, who is also engendering some controversy. He has learned to speak Pashto, the language of the Taliban, and looks like a Muslim. He is also somewhat sympathetic to Islam, actually thanking Allah right in front of the president.
The Washington Post reports that Bergdahl's beard was apparently grown both to commemorate his son's capture and to reach out to his Taliban captors. The FBI is currently investigating death threats against the Bergdahl parents.