On July 7, the Canadian government formally apologized to Omar Khadr, one of Guantanamo Bay’s ex-detainees. Speaking at a press conference, Public Safety Minister Ralph Goodale and Foreign Affairs Minister Chrystia Freeland confirmed that Khadr and the Canadian government had reached a financial settlement of $10.5 million. Khadr had filed a civil suit against the government in 2014 for conspiring with the U.S. to abuse his rights.

“We hope that this expression, and the negotiated settlement reached with the government, will assist him in his efforts to begin a new and hopeful chapter in his life with his fellow Canadians,” Goodale and Freeland said in their statement.

Speaking to CBC, Khadr said that he hopes the formal apology will restore his reputation, but is sorry if the settlement causes pain to the family of Sgt. Christopher Speer, the medic he allegedly killed in 2002.

Khadr is just one example of a former Guantanamo Bay prisoner struggling to reintegrate into society. Read on to learn the details of what it means to be a former Guantanimo Bay detainee.

Overview: The Detention Center and Its Numbers

Naval Station Guantanamo Bay is located on 45 square miles of land on a bay of the same name in Cuba. The U.S. leased it from Cuba in 1903, but it did not officially function as a detention center until the early ’90s, when it housed HIV-positive refugees fleeing a Haitian coup. Still, the base did not gain its negative reputation until after the 9/11 terrorist attacks. The first U.S. prisoners of the War on Terror–20 Afghans–arrived on January 11, 2002. Since then, according to the New York Times‘ extensive database on Guantanamo, about 780 prisoners have been detained at the base. Of that number, around 730 were eventually released without charges. Many of those transferred had been held for years. There are currently 41 detainees still at Guantanamo.

Only seven of the remaining detainees have been formally charged with any sort of crime. Five have been approved for transfer to their home countries or third-party nations, but still remain at Guantanamo Bay. Most of the detainees have had dual citizenship, but over the course of the detention center’s history, the largest group of single-nationality War on Terror prisoners comes from Afghanistan. Of the 41 detainees remaining today, 16 come from Yemen, five come from Afghanistan, six from Pakistan, and eight from Saudi Arabia. The rest come from other Middle Eastern and African countries. There have been Russian prisoners on record as well, but the last one, Ravil Mingazov, was transferred to the United Arab Emirates in January.

Throughout the detention center’s history, 15 prisoners under the age of 18 have been detained. Nine prisoners died in custody, six of them suspected of suicide.

On his second day in office, former President Barack Obama signed an executive order to close the detention center within one year, but due to widespread opposition, the facility has remained open. President Donald Trump, meanwhile, vowed on the campaign trail to “load it up with some real bad dudes.” Attorney General Jeff Sessions visited the base and detention center on July 7.

DNI Report on “Reengagement”

In 2016, the Office of the Director of National Intelligence (DNI) released a report summarizing the status of certain recidivist ex-detainees–that is, former Guantanamo Bay prisoners suspected of returning to terrorism. Prior to January 15, 2016, 676 detainees had been transferred out of the Guantanamo Bay detention center. Of the transferred detainees, 118 were “confirmed” to have reengaged in terrorism. The Bush Administration had transferred 111 of the detainees while the Obama Administration transferred seven. According to the DNI report, 63 of the 118 were still at large, while the rest were either dead or in custody.

Concurrently, 86 of the transferred detainees–74 under the Bush Administration and 12 under the Obama Administration–were “suspected” of returning to terrorist activities. Sixty-five are at large, while the rest have been killed or captured. About 30 percent of the total number of ex-Guantanamo Bay detainees have reengaged in terrorism activities.

Case Study #1: Omar Khadr

Born in Canada in 1986, Khadr went with his family to Afghanistan and Pakistan when he was eight years old. In 2002, during a firefight with U.S. troops at a suspected Al-Qaeda compound, Khadr supposedly threw a grenade that killed Sgt. Christopher Speer. He was captured and sent to Guantanamo Bay, where he was treated as an adult prisoner despite being only 16. As a part of his torture, he was beaten, denied medical treatment, held in solitary confinement, and bound in “stress positions.” He also claims to have been used as a “human mop” when he urinated on himself.

Khadr was charged under the Military Commissions Act of 2006 and is the only Guantanamo captive so far charged with killing a U.S. soldier. He confessed to killing Speer in 2010 as part of a plea deal to get him transferred to a Canadian prison, but has since recanted, claiming that he has no memory of the firefight. He was released in 2015, two years after filing a lawsuit against the Canadian government. As per the conditions of his release, he was required to live with his lawyer, abide by nightly curfews, and wear a tracking bracelet.

In the wake of the government’s formal apology and settlement, Speer’s widow petitioned to have Khadr’s assets frozen so that he could be forced to pay a $134.1 million wrongful death judgment from a Utah court. A judge rejected the petition on July 13.

Case Study #2: Jamal al-Harith

Born Ronald Fiddler in Manchester, England in 1966, al-Harith converted to Islam while in college. In 2001, while on a backpacking trip in Pakistan, he paid a truck driver to take him to Iran. Taliban soldiers stopped the truck near the Afghan border and, seeing his British passport, jailed him as a spy. He was later rescued by American troops, but then sent off to Guantanamo Bay because of his “knowledge of prisoners and interrogation tactics.” He was held there without charges for two years, during which time he was beaten, starved, and deprived of sleep and adequate water.

Shortly after his release in 2004, al-Harith and 15 other ex-detainees sued the British government, claiming that it was aware of their treatment while in U.S. custody. In total, the ex-detainees received a $12.4 million out-of-court settlement. Al-Harith reportedly received around $1.2 million, but his wife later claimed that the payout was “substantially less.”

In 2014, al-Harith crossed into Syria and joined ISIS. His wife and children followed and unsuccessfully attempted to persuade him to return to the U.K. On February 19, 2017, he carried out a suicide bombing in Mosul, Iraq.

Case Study #3: Mustafa Ait Idir

Mustafa Ait Idir is one of the Algerian Six, a group of Algerian-born Bosnian citizens who were arrested in October 2001 for allegedly planning to bomb the U.S. embassy in Sarajevo. He was transferred to Guantanamo Bay in 2002 and remained there for the next seven years. While incarcerated, according to the Center for the Study of Human Rights in the Americas, he was subjected to a beating that partially paralyzed his face. On another occasion, the Initial Reaction Force (IRF) broke Ait Idir’s finger after he refused to give them his pants (as Muslim men must be clothed while praying). The soldiers did not allow him to receive medical treatment.

Shortly after the Algerian Six’s internment, the Center for Constitutional Rights filed a habeas corpus petition on their behalf. The U.S. government rationalized that detainees at Guantanamo Bay were not protected under the Constitution because they were neither U.S. citizens nor located on U.S. territory (as Cuba still technically owns the land on which the naval base was built). The Algerian Six challenged that as co-plaintiffs in Boumediene v. Bush. In 2008, the Supreme Court ruled 5-4 that the right of habeas corpus review applies to the prisoners of Guantanamo Bay as well as U.S. citizens. Following a review of the Algerian Six’s cases files, District Judge Richard Leon ordered five of the detainees, including Ait Idir, to be released. Ait Idir returned to Bosnia.

On July 13, Ait Idir wrote an opinion piece for USA Today on his time spent on Guantanamo Bay in response to Sessions’ recent visit. His bio reveals that he is still in Bosnia, teaching computer science and living with his family. In his piece, he urges young Muslims not to turn to violence. “It is one thing to be upset, even enraged,” he writes, “it is another to be heartless. Neither Allah nor any god of any religion could ever support such cruelty to our fellow man.”

Conclusion

The three case studies listed above make up only a fraction of the detainees released from Guantanamo Bay. Many have returned to terrorist groups, while others are serving out the remainder of their sentences in other prisons. Some have been fully released, but are struggling to return to society.

Obama’s executive order to close the base is still on record, but the current administration has no plans to carry it out. If anything, Attorney General Sessions’ visit could be in preparation to send more “bad dudes” to the detention center. For now, though, Guantanamo Bay has taken a back seat to the health care vote and other priorities. The 41 prisoners still detained will remain where they are.

Delaney Cruickshank

Delaney Cruickshank is a Staff Writer at Law Street Media and a Maryland native. She has a Bachelor’s Degree in History with minors in Creative Writing and British Studies from the College of Charleston. Contact Delaney at DCruickshank@LawStreetMedia.com.

The post Guantanamo Bay’s Ex-Detainees: Where Are They Now? appeared first on Law Street.

In the fall of 2015, President Obama signed a defense policy bill that included directions for the Pentagon to release a detailed report of the backgrounds of all the remaining prisoners at Guantanamo Bay. Obama gave the Pentagon a deadline of January 24, 2016. That date was missed, but the report was delivered exclusively to Senator Kelly Ayotte (R-NH), a fervent opponent of Obama’s Guantanamo strategy, in June. On Tuesday, that report was released to the public.

The report includes the basis for the prisoners’ detentions, from low level to high level “indefinite detainees.” It includes backgrounds on the 107 prisoners detained at Guantanamo as of late 2015, when Obama signed the bill directing the report be compiled. At present, there are 76 prisoners left at Guantanamo, 34 of which have been cleared for transfer. One of Obama’s campaign promises was to close Guantanamo before his term ended, and some Republican lawmakers who oppose shutting down the prison see him as too quickly clearing prisoners for release in order to make good on that promise before January.

Ayotte has been calling for a single unclassified report on the Guantanamo prisoners for years. In an email to The Associated Press regarding the report, she said:

While the Department of Defense watered down information and failed to provide key details regarding some detainees, the report still provides Americans with a consolidated, unclassified source of information regarding the dangerous terrorists at Guantanamo who the administration has recently released or plans to release soon.

Among the high level suspected terrorists the report details Karim Bostan, a 13-year detainee, ran an al-Qaeda affiliated cell that targeted U.S. forces in Afghanistan. He has been cleared for transfer to a country outside the U.S. that is willing to accept him. Those negotiations are ongoing. The report also details the backstories of low-level detainees like Muhammad Said Salim Bin Salman. Detained in Guantanamo for 14 years, Bin Salman was suspected of traveling to Afghanistan to train at an al-Qaida camp. The Yemeni native said he never fought, and was deemed a medium intelligence risk. He was transferred to Oman in January.

Ayotte might be one of the most vocal opponents of shuttering Guantanamo–a proposition also supported by George W.Bush–but she is hardly the only Republican opposed to closing the prison. They say it’s irresponsible and could result in former terrorists re-engaging in terrorist activities. The Office of the Director of National Intelligence reported that five percent of detainees released under Obama have re-engaged in terrorism operations. Eight percent are suspected of re-engaging. Under Bush, 21 percent of released prisoners re-engaged and 14 percent were suspected of re-engaging. 500 prisoners were released or transferred under Bush and 162 under Obama.

At a Congressional hearing in March, Paul Lewis, the Pentagon’s official on the Guantanamo closing, alluded to American deaths that have come at the hand of released prisoners, saying, “there have been Americans that have died because of Gitmo detainees.” It’s a contentious issue that will surely remain relevant for months to come, but for now at least, we have a bit more transparency than in the past.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

The post Pentagon Report Sheds New Light on Guantanamo Detainees appeared first on Law Street.

They say “Art is what you can get away with,” but how does one know when they’ve crossed the line? That was the essential question at the recent panel discussion “After Charlie: What’s next for art, satire, and censorship?” The event, co-hosted by the French Institute Alliance Française (FIAF) and PEN American Center and held at FIAF’s Florence Gould Hall in New York, was mediated by WNYC’s Leonard Lopate and featured four political cartoonists and journalists: Art Spiegelman, Molly Crabapple, Emmanuel “Manu” Letouzé, and Françoise Mouly.

I went in thinking that it was going to be a depressing evening as I listened to the panelists rehash the horrible events that happened in Paris last month, and more recently in Copenhagen, but they turned out to be a very insightful yet comical group of people. (They are cartoonists after all!)

The event was not meant to focus on the tragedy but rather on the future of art and journalism. The reason behind terrorist attacks like the one on Charlie Hebdo is to attempt to reshape what journalists write. Especially after these kinds of incidents, satirical journalists may feel pressure from two sources of censorship: censorship under the law and a form of self-censorship in which they may subconsciously feel inclined to censor their work to protect others’ feelings.

This doesn’t appear to be an issue for the particular panelists who spoke here. Spiegelman, who has drawn a number of covers for the New Yorker, even went so far as to say that political correctness is one of his pet peeves. The main inspiration behind the Taliban attack on Charlie Hebdo was the publication’s tendency to depict the Muslim prophet, Mohammed. “I would have no interest in drawing the prophet unless someone told me I couldn’t,” explained Spiegelman.

Courtesy of PEN American Center via Flickr.

Crabapple, my personal favorite speaker of the night, claimed art is different from written journalism in that it “can be yanked out of context” and it only “irritates assholes.” At the same time, she said that “context is over for media,” due to the fact that most of it is now consumed online via social media. However, that certainly does not stop her from stirring controversy–it even makes it better for her. One of the most controversial comics she ever made–she said she even got death threats as a result of it–was one that she drew of Guantanamo Bay. She wasn’t allowed to draw the faces of anyone who works there, so she substituted the guards’ faces with smiley faces. On one side of the fence some of them are drinking and fooling around, while on the other side some are force-feeding a prisoner. The prisoner, however, is depicted with a normal face, as opposed a smiley face. Above she writes, “It Don’t Gitmo Better Than This.” She described Guantanamo Bay as “one of the most censored places in the world” and finds it amusing that people were so upset that she “was misrepresenting the wonderful place that is Guantanamo Bay.”

There’s a distinct difference, however, between the way that French and American cultures react to controversial comics like these. Editor and art director of the the New Yorker, Mouly, could attest to that explaining that in U.S. there’s a sort of “fear of the cartoonist,” while cartoons in France are a more ubiquitous form of journalism. Also the U.S. has a different “tradition of the free press” in that secularism is so ingrained into our politics. For example, the French are unable to understand why it’s so important what religion a politician is or whether or not he’s had an affair. Mouly’s husband Spiegelman agreed, claiming that “Steven Colbert and John Stewart are the closest thing the U.S. has to cartoonists.” 

French-born Manu attested to experiencing such a cultural divide himself, claiming that American publications have been “surprised that I would use a cartoon for such a serious [news] publication.” Manu probably had the most first-hand experience with this as not only had he met some of the cartoonists at Charlie, but also grew up dreaming of drawing for the publication. In fact, after the attacks he made a tribute cartoon that read “They killed my idols.”

My favorite part of the night was the panel’s analysis of various New Yorker covers from over the years, many of which were drawn by Spiegelman. The New Yorker’s covers are the most analogous to the work in Charlie Hebdo of all American cartoons. And now with the internet, their impact on history has become even more apparent. Remember the cover with Sesame Street’s Bert and Ernie from June 2013 when gay marriage was passed in New York? What about the satirical covers of President Obama during his 2008 campaign run? While not nearly as subversive, New Yorker covers are an ingrained part of American history just as Charlie‘s are for French culture.

One Charlie cover however, reminded me of a recent cover of Paper magazine featuring a certain pop culture celebrity. The 1978 cover features “the ass of a Jewish woman,” as the headline roughly translates. And even though it’s only a drawing, Charlie seems to take it a step further than Kim K by including pubic hair at the crotch.

Courtesy of PEN American Center via Flickr.

As Spiegelman perfectly summed it up: “Cartoons are really primitive language.” In a lot ways you can get away with being more controversial with a drawing than with words or even photographs. While words can be taken out of context too, art definitely leaves more to the reader’s imagination. So in a way, “Je suis Charlie” makes sense as we as viewers contribute just as much to the publication as its creators.

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

The post I Am Charlie, and So Are You: How Terrorism Affects Censorship appeared first on Law Street.

For many people, Guantanamo Bay conjures horrific thoughts of terrorists, torture, and inhumane treatment. Many are surprised to hear that this dark stain in American history still exists and holds more than 100 detainees. While President Obama pledged to close Guantanamo Bay during his first campaign for the presidency, the process has been far from easy. Where can the United States send detainees to be released, and who will accept those deemed simply too dangerous to be set free?

What is Guantanamo Bay?

Guantanamo Bay detention camp is a U.S. military prison located at Guantanamo Bay Naval Base in Southeastern Cuba. Since 1903, the United States has been leasing the 45 square miles the base sits on from Cuba in an arrangement that can only be terminated by mutual agreement. After the attacks on September 11, 2001, existing detention facilities at the base were temporarily repurposed in order to hold detainees and prosecute them for war crimes in the “War on Terror.”

Since 2001, Guantanamo Bay has housed nearly 800 detainees. As of the beginning of 2015, there are 127 detainees at Guantanamo Bay. During President George W. Bush’s administration, the United States claimed that since the detainees were not on American soil they were thus not protected by the U.S. constitution. Their status as “enemy combatants” meant they could be denied U.S. legal protections and even protections from the Geneva Conventions. Many detainees endured cruel, inhumane treatment and various forms of torture while being held indefinitely without charges. The Supreme Court later ruled in various cases that procedures at Guantanamo Bay violated military law and the Geneva Conventions.

President Obama signed an executive order following his 2009 inauguration ordering the detention facilities at Guantanamo Bay to be closed within a year. Despite this order, various obstacles have required that the facilities remain open.

Why haven’t the detention facilities closed?

The difficulty in closing the facilities at Guantanamo Bay comes in finding an appropriate place for the detainees to go. Many countries do not wish to take in detainees, and Congress objects to holding trials in the United States for any of the detainees who may have to serve longer sentences.

On December 19, 2014, President Obama signed the annual defense policy bill, titled the National Defense Authorization Act, into law. The Act prohibits him from closing Guantanamo Bay or transferring the detainees to U.S. soil. Negotiators even rejected a change that would have allowed detainees to come to the United States for emergency medical care rather than fly doctors and equipment to them. Despite signing, the frustrated President Obama hinted that he may claim constitutional powers to transfer some detainees against Congress’ wishes. According to the Washington Times, President Obama stated that since the law “violates constitutional separation of powers principles, (the) administration will implement them in a manner that avoids the constitutional conflict.” Watch the video below for more of President Obama’s sentiments.

At this point, the best way to whittle down the number of detainees at Guantanamo Bay is to transfer them elsewhere. Fifty-nine detainees have been approved for transfer but still remain at the facility. President Obama is allowed to transfer detainees to other countries willing to take them; however, the transfers can only take place after the Secretary of Defense certifies that they are not likely to join terrorist organizations. Frustrations linger between President Obama’s National Security staff and outgoing Secretary of Defense Chuck Hagel. While the staff has approved transfers, sign-off delays from Hagel and the Pentagon slow the process.

Has progress been made?

After a virtual halt in transfers between 2011 and 2013, a quickened pace for detainee releases was seen in 2014. Last year the Obama administration was able to transfer 28 detainees. Most recently they have been accepted by Kazakhstan, Uruguay, and Afghanistan, and they are not likely to face further detainment.

Transfers

Another 59 detainees have been approved for transfer but remain at Guantanamo Bay; 51 of those approved are from Yemen. The United States is not willing to send the detainees back to Yemen due to instability and prevalent militant activity. Concerns that the government there cannot ensure that the men will not join a terrorist organization rule out any chance they would be sent back to the country. The United States is instead looking to countries in Europe, Latin America, and the Middle East to take some of the detainees. Countries must assure the United States the detainees will not return to the battlefield and will be treated humanely.

Detainees in Limbo

If the United States can find places to send all of the 59 detainees approved for transfer, officials can begin the more difficult task of deciding what to do with the remaining prisoners. An additional 58 detainees are expected to remain in limbo. They are considered too difficult to try in court due to insufficient evidence, but they are still too dangerous to release. Ten detainees, including five alleged to have helped plot the 9/11 attacks, are in the military trial stage and have been for months. Administration officials say that the detention center cannot be closed without sending at least some of the remaining inmates to the United States to be held for longer sentences.

Cost Issue

The hope is to decrease the population down to the low 120s within the next month, making it half of what is was when President Obama took office in 2009; however, this still leaves President Obama far from his goal of closing the prison. The White House has continually argued that Guantanamo is a propaganda symbol used by terrorists to fuel anger at the United States and so it should be eliminated; however, the Obama administration has increasingly made the argument for Guantanamo Bay closure from a financial standpoint. According to the Wall Street Journal, the cost to operate the prison is between $400 and $500 million annually. The annual cost per inmate at Guantanamo Bay is well above $2 million, while officials say the cost to hold an inmate at a U.S. supermax prison would be only around $78,000. As more inmates are transferred from Guantanamo Bay, the cost per inmate continues to rise. The hope is to reduce political opposition to the ban on transferring detainees to the United States by shrinking the number held at Guantanamo until maintaining the separate facility seems far too expensive.

Watch the video below for more information on the difficulty of closing Guantanamo Bay.

Does releasing detainees pose security risks?

It depends on who you ask. A 2013 report from the Director of National Intelligence (DNI) stated that 17 percent of the more than 600 Guantanamo detainees released or transferred since 2002 returned to militant activity. An additional 12 percent were suspected of doing so. In order to cut down on this recidivism the DNI recommended avoiding transfers to countries enduring conflict, instability, or active recruitment by terrorist organizations. President Obama noted, however, that over 90 percent of Guantanamo Bay detainees transferred during his administration are not confirmed or suspected of having reengaged in terrorist activity. Still, many critics contend that the increased pace of prison transfers raises national security concerns.

The risk of future terrorism  is not limited to released Guantanamo Bay detainees. For instance, Abu Bakr al-Baghdadi, head of the Islamic State, was once a prisoner at a U.S. detention center in Iraq before being released. Others note that recidivism in the U.S. legal system is higher than 60 percent, which is much worse than recidivism rates from Guantanamo Bay. While there are risks in releasing detainees, there are similar risks in releasing any prisoner.

With the goal of shutting down Guantanamo Bay, there are few other options than releasing detainees to other countries. Americans remain fearful of detainees being held on U.S. soil. A Gallup poll released in June 2014 said 29 percent of Americans support closing the detention center at Guantanamo Bay and transferring detainees to U.S. prisons. Sixty-six percent oppose the idea. While Americans may agree in theory that the prison should close, they do not want the detainees to ever be held on U.S. soil.

Watch the video below for more of the potential risks of moving prisoners to the United States.

Conclusion

Guantanamo Bay will not be closing anytime in the immediate future. Ultimately President Obama may have to threaten executive action if he cannot overcome congressional opposition to moving the detainees more quickly and shutting down the facility. With no place to put many of the remaining prisoners who are stuck in limbo, it is likely some would have to be sent to the United States for the prison to close anytime soon. At this time, that seems unlikely to happen; however, given fewer detainees and extremely high costs of running the facility, the American public may eventually warm to the idea of housing certain prisoners in the United States.

Resources

Primary

White House: Executive Order: Closure of Guantanamo Bay

Director of National Intelligence: Summary of Reengagement of Detainees

Additional

Washington Post: U.S. Prepare to Accelerate Detainee Transfers

CNN: Guantanamo Bay Naval Station Fast Facts

Politifact: Obama: ‘We’re Spending Millions for Each Individual’

The New York Times: Four Afghans Released From Guantanamo Bay

Washington Times: Obama Signs Defense Bill That Keeps Gitmo Open

CNN: U.S. Hopes to Transfer Dozens From Gitmo

CNN: What Happens When Detainees Get Out?

USA Today: Obama Faces Challenges in Closing Gitmo

Fox News: U.S. Releases Fives More Guantanamo Bay Prisoners

Wall Street Journal: Obama Weighs Options to Close Guantanamo

Alexandra Stembaugh

Alexandra Stembaugh graduated from the University of Notre Dame studying Economics and English. She plans to go on to law school in the future. Her interests include economic policy, criminal justice, and political dramas. Contact Alexandra at staff@LawStreetMedia.com.

The post What Will it Take to Finally Close Guantanamo Bay? appeared first on Law Street.

In recent weeks, the swap of Bowe Bergdahl in exchange for Taliban leaders has sparked much criticism and mixed reactions towards the United States’ policy on dealing with terrorists. Congressional leaders are upset that they did not receive notification prior to the prisoners’ exchange. Others are fearful that the deal makes the United States appear to negotiate with terrorists. So, what does all of this mean–did President Obama make the right call to bring back Bergdahl? Most importantly, what are the future implications for American diplomacy? Here is everything you need to know on the Bergdahl’s exchange.

Who is Bowe Bergdahl?

Bowe Bergdahl is a soldier in the U.S. Army who was held captive by the Taliban-affiliated Haqqani network in Afghanistan from June 2009 to May 31, 2014. Bergdahl was released to the United States in exchange for five senior Taliban members who were held at Guantanamo Bay. The controversy surrounding Bergdahl’s release has made him one of the highest-profile POWs in decades. The exchange itself can be seen in the Taliban video below:

A celebration in Bergdahl’s hometown of Hailey, Idaho was cancelled due to the controversy and Bergdahl’s family has been receiving threats. Bergdahl is currently recovering in Germany, where he is speaking but still has not contacted his family or anyone in the United States. The focus is currently on Bergdahl’s emotional recovery, but officials are hopeful he will soon be able to shed light on his story.

How and why was Bergdahl captured?

The circumstances surrounding Bergdahl’s capture remain disputed. National Security Advisor Susan Rice claimed on ABC that Bergdahl “served the U.S. with distinction and honor.” However, numerous reports claim Bergdahl to be a deserter who grew increasingly disillusioned with the U.S. effort in Afghanistan. According to first-hand accounts, Bergdahl walked off his post and left behind a note along with his body armor and rifle. An unnamed defense official confirmed that Bergdahl walked off the post without authorization. It is reported that Bergdahl’s desertion led to the death of at least six troops in the search for him, though it is unclear if these deaths were directly related to the search for Bergdahl. According to an essay in the Daily Beast by Nathan Bradley Bethea, a former sergeant in Bergdahl’s battalion, “Every intelligence aircraft available in theater had received new instructions: find Bergdahl.” Troops were concerned Bergdahl may be providing the enemy with information. Bergdahl’s former squad leader, Justin Gerleve, goes so far as to tell CNN that following Bergdahl’s disappearance, “The attacks did get more direct, the IEDs did get more pinpoint to our trucks.” Reports dating to 2009 claim Bergdahl had wandered from his assigned areas before. The U.S. Army, currently investigating the claims made by those who served alongside Bergdahl, has yet to confirm any of these accusations.

What led to his release?

A deal involving Bergdahl’s release had been considered for several years but talks had continually broken down. In January 2014, the White House received an emotional video of Bergdahl whose health appeared deteriorated to the point of near death. The Obama administration stated the new health concerns conveyed the need to move quickly to bring Bergdahl home. While Bergdahl is currently listed in good health and reports of his desertion surface, President Obama has defended the decision in claiming the United States cannot qualify the release of a U.S. soldier. Some have praised Obama for his shown commitment to bring back POWs and for refusing to leave a soldier behind as the war ends. Obama defends his actions in the video below:

Relative secrecy of the deal was required as any information leaked from the deal was a clear threat to Bergdahl’s life by the Haqqani. Later, the administration added to its rationale that Bergdahl’s value to his captors was diminishing as negotiations had previously failed and the end of the war in Afghanistan was quickly approaching.

What were the arguments against his release?

The problem many have with the deal is that the President Obama failed to follow the requirement that the Defense Secretary notify appropriate Congressional committees at least 30 days prior to the transfer of any prisoners at Guantanamo Bay. The National Defense Authorization Act stipulates the 30-day notification, but Obama did write a signing statement in December 2013 concerning the potential unconstitutionality of this Act. The statement outlines Obama’s concern that the Act could limit his ability to act quickly in conducting negotiations regarding detainee transfers, such as the fast action required to swap for Bergdahl. Still, members of Congress want answers for why they were not briefed. Defense Secretary Chuck Hagel is to testify in front of the House Armed Services Committee on the release of Bergdahl. The clip below discusses the alleged illegality of the swap:

Other concerns involve what future threats the five detainees involved in the swap may pose to the United States. Negotiations for the deal were made through Qatar, who promised the United States that the former prisoners would stay in Qatar and be prohibited from participation in terrorist activities for one year. The five released were all in their mid-to-late 40s and were the most senior Taliban leaders still in the hands of the United States. Questions surround what will happen when their one year travel ban in Qatar expires and what, if any, other restrictions are in place. Secretary of State John Kerry discusses the release of the Taliban and future U.S. actions below:

Discussion has also arisen regarding Bergdahl’s punishment. If Bergdahl was a deserter, the severe law on wartime desertion could mean Bergdahl would be subject to further punishment even beyond his five years already spent in captivity. Current punishment for military desertion could result in death, though it is highly unlikely Bergdahl would face such an extreme punishment.

Is this a new foreign policy stance?

Throughout the War on Terror and especially following the attacks on September 11,  it has been made clear the United States does not negotiate with terrorists. Some argue the prisoner exchange has made the United States appear to negotiate with terrorists, which has fueled fears that more Americans will be captured to be used as a bargaining chip. However, the United States has negotiated in the past to free American hostages, most notably in the 1979 Iranian hostage crisis, in freeing hostages taken by Hezbollah in Lebanon in the 1980s, and even in trading Iraqi militants for the release of British civilian Peter Moore in 2010. It could be argued the country has entered a different era in foreign policy and in dealing with terrorists, but clearly the United States has traded for hostages in previous decades. Listen below  to the discussion of what message is being sent by the swap:

Will this have any impact in Afghanistan?

While negotiations were made through a third party of Qatar, the negotiation process has illustrated that it may be possible for the United States and Taliban to find some small area of mutually beneficial common ground. The Taliban showed good faith in the talks and a degree of trust was established. With this prisoner swap as a potential first step, greater talks in the future may come as the war continues to wind down. Some argue the deal conveys American weakness, as statistics from the Office of the Director of National Intelligence show more that 16 percent of detainees released from Guantanamo Bay have returned to terrorist activity, while 12 percent are suspected of having returned to terrorism. One of the released, Noorullah Noori, has reportedly already told relatives he hopes to return to Afghanistan to fight Americans. But as the War in Afghanistan is soon set to end, the United States will have to release its prisoners at Guantanamo Bay if the prisoners are classified as POWs under international law. If the prisoners are to be released anyway, it makes sense to use them as a tool for negotiation rather than setting them free and coming away empty-handed. The real question becomes what will happen when detainees are set to be released and the United States no longer gets something in return. Could the swap have energized the opposition so closing Guantanamo Bay will become even harder?

Resources

Primary 

Barack Obama: 876-Statement on Signing the National Defense Authorization Act for Fiscal Year

Additional 

Politico: Rice: ‘Sacred Obligation’ Led to Bergdahl Swap

Weekly Standard: Susan Rice: Bergdahl Served with Honor and Distinction

Washington Post: Obama: No Apologies for Bergdahl Release Deal

USA Today: Bergdahl Trade More About Guantanamo

CNN: Kerry Defends Bergdahl for Taliban Exchange

Daily Beast: We Lost Soldiers in the Hunt for Bergdahl

Blaze: We’ve Got Bigger Problems: The Broader Implications of the Bergdahl Release

Wall Street Journal: Trading With the Taliban

CNN: Bergdahl’s Former Squad Leader: He Did Not Serve with Honor and Distinction

CNN: The Six Soldiers at Center of Bowe Bergdahl Debate

Wall Street Journal: Behind Bowe Bergdahl’s Release, a Secret Deal That Took Three Years

MSNBC: Bowe Bergdahl: Deserter or Hero?

CNN: Was Bergdahl Swap Legal? Depends on Who You Ask

USA Today: Army Says it Will Launch a New Review of Bergdahl Capture

Washington Post: The Timeline You Need to Understand the Bowe Bergdahl Story

Alexandra Stembaugh

Alexandra Stembaugh graduated from the University of Notre Dame studying Economics and English. She plans to go on to law school in the future. Her interests include economic policy, criminal justice, and political dramas. Contact Alexandra at staff@LawStreetMedia.com.

The post Trading POWs: What Does Bergdahl’s Release Mean for American Diplomacy appeared first on Law Street.

One of the promises that Obama made on the campaign trail during his first election in 2008 was to close down the prison at Guantanamo Bay. Some steps have been taken to do so, but for most part, it has been stagnant partly due to disagreements in Congress. But yesterday, Obama signed a bill into law that might move the closure within reach.

In order to even think about closing Guantanamo, something has to be done with the remaining 158 prisoners who are kept in custody there. Obama has long rallied against the restrictions that make it difficult to transfer prisoners in Guantanamo to the custody of foreign nations, usually a prisoner’s home nation.

In addition to clearing out Guantanamo so it can be closed down, the ability to transfer prisoners to other countries allows them to be tried for their crimes by their own country rather than just languishing in prison on foreign soil. The bill, however, did not go so far as to allow transfer of the prisoners to the United States, where they could be tried for their crimes against this nation.

During the signing, President Obama reaffirmed his devotion to making sure that Guantanamo Bay is closed down. He stated, “the continued operation of the facility weakens our national security by draining resources, damaging our relationships with key allies and partners and emboldening violent extremists”.

The bill that contained the Guantanamo Bay provisions is called the National Defense Authorization Act. The National Defense Authorization Act is passed each year. It specifies what the budget and expenditures will be for the Department of Defense in the coming fiscal year.

In addition to this change for Guantanamo, there were some other noteworthy provisions in the National Defense Authorization Act of 2014. One of those is a 1% pay increase for all service members. There are also clauses that mandate changes in the way in which sexual assault incidents in the military are reported and dealt with by the Pentagon.

These changes aren’t as dramatic as advocates have called for, but they do take strong steps towards preventing rape in the military, and punishing the offenders when an assault does occur. The bill removes the statue of limitations on reporting rape; bar military commanders from overturning jury convictions in sexual assault and rape cases; criminalize retaliations against people who report such crimes; mandate the dishonorable discharge or dismissal of anyone convicted of such crimes; and give civilian defense officials more control over prosecutions. These are all steps in the right direction, despite the fact that advocates, such as Sen. Kirsten Gillibrand (D-NY) say they don’t go quite far enough.

Both of these provisions within the National Defense Authorization Act –the Guantanamo Bay changes and the changes to the Pentagon sexual assault policy–are small victories for the Obama Administration. Our President has had a very tough year–between the NSA spying scandal to the botched rollout of the Affordable Care Act–it has been a bit of a mess. Although these accomplishments are small, the steps to close Guantanamo Bay fulfills a promise 5 years overdue. And the changes to the sexual assault policy in the Pentagon cements Obama’s status with women, a group that was crucial to his 2012 victory. Hopefully it is a sign of good things to come in 2014.

—

Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Steve Rhodes via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Big Changes to Guantanamo Bay appeared first on Law Street.