On Negotiations…with Terrorists and with Congress

Sgt. Bowe Bergdahl, a recently released prisoner of the Taliban, has become the target of one of Washington’s favorite games: shooting first and asking questions later. Much of what has been said  about Bergdahl is so blatantly partisan or so needlessly abusive as not to deserve comment. In the course of it, however, a couple of valid questions have been raised. One concerns the the propriety of negotiating with terrorists; the other is the reason for not notifying Congress. Sometimes it is important to negotiate, even with terrorists and Congress.

Negotiations with Terrorists

Prisoner exchanges are common. They are among the loose ends that need to be tied up when wars end. Arguably the Afghan war is not over yet, but the U.S. role in it is definitely winding down and the opportunity presented itself; it was not guaranteed to present itself again. This exchange invoked two longstanding but contradictory principles. As a rule, the United States does not negotiate with terrorists and (if possible) does not leave its people behind. So when not leaving someone behind requires negotiating with terrorists, a tradeoff must be made. As usual, things are more complicated than they originally appear.

First of all, are the Taliban terrorists? We have gotten into the habit of attaching the label “terrorist” to just about everyone we dislike these days, but it does not always fit. Al Qaida is a terrorist organization, yes. And the Taliban government did shelter al Qaida and allow it to plot from Afghan territory. Yet the U.S. government has never designated the Taliban as a Foreign Terrorist Organization. (Tehrik-e Taliban Pakistan, yes, but not the Afghan Taliban.) To my knowledge, the Taliban itself never attacked the United States or any U.S. overseas interest outside the context of the Afghan civil war into which we inserted ourselves after 9/11. None of that necessarily makes the Taliban upright citizens, but it does remind us that the world is a complicated place and that policy cannot by guided by a few handy clichés.

Why is it that we do not want to negotiate with terrorists, or hostage takers of any ilk for that matter? There are two reasons. First, we do not want to grant them any assets (five former Taliban leaders, in this case) that might give them an advantage in future conflicts. Second, and perhaps more fundamentally, we do not want to encourage the idea that you can get what you want by kidnapping Americans. That could encourage them to kidnap more Americans. (This lesson was reinforced in the 1980s when the Reagan administration sold TOW and HAWK missiles to Iran in exchange for Iran using its influence to obtain the release of U.S. hostages held in Lebanon. Some of the hostages were released, but new ones were then seized.)

It is difficult to say how much of an asset these five former leaders are. They have been out of commission for 12 years and know nothing of the current situation in Afghanistan or of contemporary Taliban policies. As relatively senior figures, they will not “return to the battlefield” in any literal sense. There may be something special about them such that their eventual return will make the Taliban a more potent fighting force, but it is hard to imagine what that might be. According to the Afghanistan Analysts Network, some of the public assertions about them may have been exaggerated. They were never considered for trial at Guantánamo. President Karzai, who should have the greatest concern about them as a potential threat, has publicly called for them to be released without conditions (although he is known to change his mind from time to time). Moreover, the legal justification for holding them will expire at the end of 2014, when the United States concludes its formal participation in Afghanistan’s civil war. (They are being held not as terrorists but as officials of Afghanistan’s Taliban government.) That raises the possibility that they would have to be released eventually anyway. This way, at least, we get our prisoner back. It might have been nice to get more, but that was not our decision alone; the Taliban did not agree to more, and they are the ones who had Bergdahl.

Will the Taliban be encouraged to capture more American soldiers. That is a possibility, yet they do not seem to be very good at it. They have had no reason not to capture American soldiers up to now (there is a war going on, after all), but in 13 years they have managed to seize only one, and he was apparently wandering about on his own unarmed. Moreover, there was nothing to stop them from demanding more in return for Bergdahl, but in four years of on-and-off negotiations, these were the only ones they requested. In any event, Guantánamo does not hold many more Taliban, and the prisoners held in Afghanistan have already been turned over to the Afghan government.

Negotiations with Congress

The issue concerning Congress derives from a provision (Section 1035) in the 2014 National Defense Authorization Act, signed into law in December 2013. While loosening the rules for the transfer of prisoners from Guantánamo, Congress maintained the ban on transfers to U.S. soil and set three conditions for transfers to other countries: the Secretary of Defense must certify that a particular transfer is in the national interest; steps must be taken to assure that a released detainee does not become a future threat; and Congress must be notified of a planned transfer 30 days in advance.

The sticking point here was that President Obama transferred the five to Qatar without the required 30-day notice, or indeed, any advance notice at all. At the time the bill was passed, Obama voiced his objections to these restrictions in a signing statement, arguing that they undermined his ability to engage in rapid and flexible negotiations, which circumstances might require, and violated the constitutional separation of powers and that he would therefore implement them “in a manner that avoids the constitutional conflict.” As a candidate, of course, Obama had objected to President Bush’s use of such signing statements to limit the effect of legislation that he didn’t like, which critics have denounced as hypocrisy. Of course, many of those critics had no problem with Bush’s signing statements, which were far more numerous.

In justifying the lack of notification in this particular case, the administration has stressed the need to act swiftly and to prevent leaks that could endanger Bergdahl’s life. It is important to remember here that the timing of the negotiated release, much like the conditions of the exchange, depended on the Taliban as much as it did on the president. He could have decided that he wanted to hold out for a better deal or delay the negotiation until a more appropriate date (however that might be defined), but he could have no assurance that the same deal would still be available then, let alone a better one. The Taliban had walked away from the negotiations a number of times, suggesting that they had their own doubts or internal disputes about the desirability of a deal. Beyond that, two factors argued in favor of a rapid solution: Bergdahl’s health, which appeared to be deteriorating in a video released by the Taliban last winter, and the fact that most U.S. forces and intelligence operatives would soon be leaving the country, which would reduce U.S. bargaining leverage by eliminating the prospect that U.S. forces could rescue the prisoner unilaterally. Even if a unilateral rescue was unrealistic, the Taliban could not be sure that it was unrealistic.

I suspect that an additional factor contributed to Obama’s reluctance to include Congress in the process. It was not a question of timing so much as a question of the deal happening at all. Congress has become so dysfunctional that to include it would be to stop the process entirely. Congress these days is unable to pass much of anything other than a few bills absolutely necessary to run the government, such as the National Defense Authorization Act. This is due in part to the inability of Democrats and Republicans to agree on priorities, but ideological polarization does not explain everything. Much of the problem is due to a conscious Republican strategy of undermining the Obama administration by obstructing everything and then accusing the Democrats of not cooperating with them.

In his first term, Obama’s approach to negotiating with the Republicans was to include their perspective in his proposals in the hope of winning some of them over to his side. By the beginning of his second term, he had given up on offering compromise solutions and left it to the GOP to do their own negotiating. Now, he has given up entirely and focuses on areas where he can achieve goals through unilateral executive action, limited though those may be. This, it appears, is how he chose to deal with the Bergdahl case.

To be fair, the obstruction is especially strong for initiatives connected to Guantánamo because here wary Democrats have joined in as well. Bipartisan coalitions are still possible when it comes to keeping things from happening. People form both parties have stymied the president’s efforts to close the facility, to transfer detainees to a U.S. prison, or to hold trials in civilian courts since he first entered office. Thus, on this issue, the temptation to avoid Congress must be especially strong.

Concerning knowledge of the exchange, administration officials have pointed out that Congress has known about the negotiations for years and has known at least the rough outlines of this particular deal for months. The terms were sketched out in the Washington Post last February, and Sen. John McCain (R-Ariz.) discussed them on television at that time. Yet the administration is being disingenuous because its past experience should have convinced it that Congress would not approve, certainly not readily. Indeed, critics of the deal in Congress are now saying that the administration did not get enough in return for releasing the Taliban prisoners. They had raised the same objection to a more complex deal proposed in 2011. Whether the collapse of that deal resulted directly from Congress’s objection we will probably never know, yet the prospect of having to renegotiate this one yet again could not have been encouraging. Thus, I suspect, they avoided the issue by acting unilaterally (although they cannot say that). It was the only way to get Bergdahl back. In doing so they knew they would face some degree of reproach, but they probably assumed that success in achieving the goal would ease the blow. Besides, by now they expect Republicans to object regardless of what actually happens. (Remember, last year, when talk was of bombing Syria, people complained that Obama did want to consult Congress.)

A Big Problem

Unlike negotiating with terrorists, negotiating with Congress is not usually associated with moral or strategic dilemmas. Yet, in practical terms, it has come to be seen as pointless and at times counterproductive. This is a major problem. The Bergdahl case shows how the practice of obstructing the president and the new practice of avoiding Congress are working themselves into the system. We would like to believe that, if nothing else, these practices are due to bad blood between Obama and the Republicans and will disappear with Obama’s departure from the White House, but even that is far from guaranteed. Like signing statements and drone attacks, they could well live on after their originators have left the scene, especially if politics remains highly polarized and evenly enough balanced that either side can dream of quickly regaining power. What to do about this is an issue that deserves concentrated attention.