TIME

Bowe Bergdahl: Terrorist Hostage or POW?

The freed American soldier was held by an officially designated terror group. But a White House official tells TIME, "We did not negotiate with the Haqqanis."

Of all the questions swirling around the Sgt. Bowe Bergdahl case, this may be the most explosive: Did President Barack Obama cut a deal with terrorists?

The White House insists the answer is no. But Republican critics aren’t satisfied.

“He was not a prisoner of war, he was with the Haqqani network, which is a terrorist organization,” Michigan Rep. Mike Rogers, the Republican House Intelligence Committee chairman, said Monday on MSNBC. That’s why Rogers accuses Obama of violating a stated—if not always observed—U.S. policy of not negotiating with terrorists.

The dispute between the Obama White House and its conservative critics hinges on three key questions: Who were Bergdahl’s captors? Who did the U.S. negotiate with? And was Bergdahl a hostage—or a prisoner of war?

The answer to question one is that Bergdahl was, as Rogers said, held by the Haqqani network— a militant group based along the Pakistan-Afghanistan border that has mounted attacks against NATO forces for years. Haqqani leaders spoke openly to western media outlets about his captivity, and the New York Times and other outlets have described them as his captors.

Obama officials don’t usually mention the Haqqanis. They generally say—as does White House press secretary Jay Carney—that Bergdahl was held by “the Taliban.” When White House National Security Advisor Susan Rice was asked on CNN Sunday whether Bergdahl was held by the Haqqanis, she didn’t respond directly—saying only that “he was being held by the Taliban.”

But “Taliban” is a broad term which describes several distinct factions, of which the Haqqani network is only one. According to the Institute for the Study of War, “the Haqqani network is officially subsumed under the larger Taliban umbrella organization led by Mullah Omar and his Quetta Shura Taliban,” although the group maintains its own independent command structure and operations.

Why do Obama officials prefer to talk about the Taliban over the Haqqanis? Perhaps one is an official terrorist organization and one is not. In September 2012 Secretary of State Hillary Clinton approved an official U.S. State Department designation of the Haqqani network as a foreign terrorist organization. The Afghan Taliban has not been so designated. The Haqqanis are unpalatable for another reason: they keep close ties to al-Qaeda.

Given that Bergdahl was held by an officially designated terrorist group, doesn’t it follow that Obama negotiates with terrorists? Not exactly. The U.S. bargained the release via the Persian Gulf nation of Qatar, which served as an intermediary. “We appreciate the support of the government of Qatar in facilitating the return of our soldier,” White House national security council spokeswoman Caitlin Hayden tells TIME. “We did not negotiate with the Haqqanis.”

In short: we dealt with the Qataris, and the Qataris dealt with the Haqqanis. Did we therefore deal with the Haqqanis? Technically, no. In spirit, yes.

Which brings us to question three: ransom or prisoner exchange? Obama officials argue the latter.

“An exchange of prisoners is normal in armed conflict, and this is separate and distinct from our policy on not offering concessions to hostage takers,” says Hayden. “Sgt. Bergdahl was not a hostage, he was a member of the military who was detained during the course of an armed conflict. The United States does not leave a soldier behind based on the identity of the party to the conflict … It was a prisoner exchange. We’ve always done that across many wars.”

Of course, Afghanistan is an unusual war. The Afghan battlefield has featured a complex mix of local fighters battling for control of their country and radical ideologues, some from other countries, motivated by hatred of the west. In some ways it is a non-traditional front in what was once known as the global war on terror. The U.S. has long justified its detention of prisoners at Guantanamo without trial on the grounds that they are “enemy combatants” not subject to traditional rules governing prisoners of war.

Even so, there’s a strong case behind the White House position: Bergdahl left a military base in an obvious war zone and wound up in the hands of an armed group that has conducted major attacks on NATO forces in Afghanistan. His capture and release has little in common with extremist kidnappings for ransom of westerners around the world.

The State Department may consider the Haqqanis a terrorist group—although experts say it has no ambition to harm Americans outside of the region—but Hayden’s argument suggests that the context of an armed conflict would supersede that status anyway. In other words, if a terrorist group captures a soldier on a battlefield, the rules of war apply—not the rules of counterterrorism.

It’s not a simple answer, nor will it satisfy the likes of Mike Rogers. But even Rogers admits that he would have sought a better bargain for Bergdahl’s release, which he said came at too high a cost. In doing so, he implicitly endorses negotiating with an enemy he considers to be a terrorist group. Which is understandable. The alternative—leaving captive U.S. soldiers to their fate—is awfully grim.

TIME National Security

White House Overrode Internal Objections to Taliban Prisoner Release

Pentagon, Intelligence officials used Top Secret intelligence to prevent previous release of Taliban Five, officials tell TIME

To pull off the prisoner swap of five Taliban leaders for Sgt. Bowe Bergdahl, the White House overrode an existing interagency process charged with debating the transfer of Guantanamo Bay prisoners and dismissed long-standing Pentagon and intelligence community concerns based on Top Secret intelligence about the dangers of releasing the five men, sources familiar with the debate tell TIME.

National Security Council officials at the White House decline to describe the work of the ad hoc process they established to trade the prisoners, or to detail the measures they have taken to limit the threat the Taliban officials may pose. They say consensus on the plan was reached by the top officials of Obama’s national security team, including representatives from the Pentagon, State Department, intelligence community and Joint Chiefs of Staff. “These releases were worked extensively through deputies and principals,” says National Security Counsel Deputy for Strategic Communications Ben Rhodes. “There was not a dissent on moving forward with this plan.”

But officials in the Pentagon and intelligence communities had successfully fought off release of the five men in the past, officials tell TIME. “This was out of the norm,” says one official familiar with the debate over the dangers of releasing the five Taliban officials. “There was never the conversation.” Obama’s move was an ultimate victory for those at the White House and the State Department who had previously argued the military should “suck it up and salute,” says the official familiar with the debate.

Obama has broad authority under Article II of the U.S. Constitution to order the prisoner exchange as commander in chief of America’s armed forces. The lengths to which he went to bring it about show how determined he was to resolve the lingering issue of America’s only prisoner of war in Afghanistan.

The Obama administration first considered whether the five men were safe to release at the very start of his term as president. In January 2009, Obama ordered a Justice Department-led review of all 240 Guantanamo Bay detainees. The five Taliban leaders were found to be high risks to return to the fight against Americans, confirming Bush administration assessments of the threat they posed, according to officials familiar with the group’s findings. “These five are clearly bad dudes,” says a second source familiar with the debate over their release, adding that the detainees are likely to return to the fight.

Thereafter, the administration established a regular process for handling the release of detainees from the military prison at Guantanamo Bay. Releases were considered and approved through the “Guantanamo Transfer Working Group” which comprised officials from the State Department, the Pentagon, the intelligence community, the Department of Homeland Security and the Joint Chiefs of Staff. Over time, 82 detainees have been released by the Obama administration, according to the latest report to Congress by the Office of the Director of National Intelligence.

The question of the release of the five Taliban leaders was a recurrent subject of debate in the administration and was a key element of the behind the scenes effort by the State Department and the White House to negotiate a peace deal with the Taliban. The transfer of the five was discussed as a possible confidence-building measure to pave the way for a deal. The debates over their release were contentious, officials familiar with them say.

Those opposing release had the benefit of secret and top secret intelligence showing that the five men were a continuing threat, officials familiar with the debate tell TIME. But in the push from the White House and the State Department to clear the men, opponents to release found themselves under constant pressure to prove that the five were dangerous. “It was a heavy burden to show they were bad,” says the second source familiar with the debate.

Opponents of release say absent a peace deal with the Taliban, the release makes no sense. “When our military is engaged in combat operations you’re always going to err on the side of caution,” says the first official familiar with the debate. “Just conceptually, how much sense does it make to release your enemy when you’re still at war with him?”

During previous debates, opponents were aided by a law passed by Congress during Obama’s first term that required the administration to certify to a set of onerous conditions that the administration said were nearly impossible to meet. That changed thanks to the efforts of Sen. Carl Levin, who managed to weaken certification standards in the 2014 National Defense Authorization Act to allow the Secretary of Defense to release Guantanamo prisoners when it is in the national security interests of the United States.

That change made it easier for the President to exert his commander in chief powers in effecting the prisoner swap. So far the White House has said little about the measures they negotiated to assure the men would not be a threat upon release. Administration officials have said the men will remain in Qatar under a one-year travel ban. Under existing procedure, released detainees are monitored by the CIA station chief in the country where they reside. On Tuesday, Obama said he had confidence the U.S. would “be in a position to go after them if in fact they are engaging in activities that threaten our defense.”

But Republicans now question whether the president has gone too far, even under the new law, which still requires 30 days’ notice ahead of a release from Guantanamo Bay. Administration officials told members of the Senate armed services and intelligence committees “repeatedly they weren’t going to [release the five men] and they would be notified and consulted if they did,” says a GOP Senate aide. The committees were only notified after the fact.

At least one member of the Senate did have advance notice. “We were notified of the plan to secure Sergeant Bergdahl’s release on Friday,” said Adam Jentleson, a spokesman for Senate Majority Leader Harry Reid. A spokesman for Republican House Speaker John Boehner, however, told TIME that there was no advance notice given to the leader of the House. Senate Intelligence Chair Dianne Feinstein was not informed in advance, either, and on Tuesday Deputy National Security Advisor Tony Blinken called her to apologize for the oversight, she told reporters.

The White House said Tuesday the President had exercised his constitutional authority out of a sense of urgency for Bergdahl’s safety. “Delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. soldiers,” National Security Council spokeswoman Caitlin Hayden said in a statement released to the press. “Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances,” Hayden said.

Jack Goldsmith, a Bush administration veteran of the battles between the executive branch and Congress over Commander-in-Chief powers in the war against terrorists, says Obama may have been acting legally. On the website Lawfare Tuesday he wrote, “If the statute impinged on an exclusive presidential power, the president properly disregarded it and did not violate it.”

Even many of those who opposed the release in the past accept the president has the power in conflicts to effect a prisoner swap. “We have done prisoner swaps in the past,” says the first official familiar with the debate over the release. But, the official added, “That’s been in international armed conflict where you have a state with which you can negotiate and you can say this guy will not go back to the fight.”

–with additional reporting by Zeke Miller and Alex Rogers/Washington

TIME National Security

How the Bergdahl Story Went from Victory to Controversy for Obama

What began as an uplifting tale of a rescued hero has become a political headache for President Obama. Did the White House oversell the controversial deal for Bowe Bergdahl?

It was a rare Saturday afternoon presidential announcement—and a most unusual one. Barack Obama appeared outside the White House in the spring sunshine with the parents of Bergdahl, an American soldier been held captive by the Afghan Taliban since 2009, to announce their son’s freedom.

“This morning, I called Bob and Jani Bergdahl and told them that after nearly five years in captivity, their son, Bowe, is coming home,” Obama said. “He wasn’t forgotten by his community in Idaho, or the military, which rallied to support the Bergdahls through thick and thin. And he wasn’t forgotten by his country, because the United States of America does not ever leave our men and women in uniform behind.”

The first round of media coverage was triumphal, reflecting the president’s tone. “Obama Welcomes Release of Captured Soldier” proclaimed the Washington Post. ABC trumpeted “The Remarkable, Top-Secret Deal with the Taliban to Free US Soldier.”

An NBC story concluded with this uplifting exchange between Obama and Bergdahl’s mother: “Embracing President Obama later, she could be heard saying, ‘Yes, it’s a good day.'” Top administration officials chimed in with a flurry of celebratory tweets. In a fell swoop, the political media’s obsession with the resignation of Veterans Affairs secretary Eric Shinseki had been replaced with a stirring new drama.

It wasn’t long, however, before the many shades of gray that define the deal to release Bergdahl came to light. Republicans, military veterans and political analysts questioned everything from the price—five once-senior Taliban figures held at Guantanamo Bay—paid for Bergdahl, to Obama’s failure to give Congress expected notice of the deal, to Bergdahl’s own complicated story, one of possible desertion in a war zone.

By Tuesday, a reporter traveling with Obama in Poland even seemed to imply that the president hadn’t known the full details of Bergdahl’s story when he first announced the deal on Saturday: “I wanted to ask you if you have learned more about the circumstances of Sergeant Bergdahl’s capture, and whether he could be facing punishment given that the Pentagon has concluded that he left his unit?”

“The United States has always had a pretty sacred rule, and that is we don’t leave our men or women in uniform behind,” Obama replied, adding that “regardless of the circumstances, whatever those circumstances may turn out to be, we still get an American soldier back if he’s held in captivity. Period. Full stop. We don’t condition that.”

Current and former administration officials say the White House knew full well how politically charged and complicated the Bergdahl deal would be (even if, as the sources suggest, they may have underestimated the bitterness of his fellow combat veterans). Which is why some wonder why it was presented in such an uplifting fashion, with little or no effort to pre-empt the inevitable criticisms.

“Why not roll out the announcement in a low key fashion?” asks a former White House official, “e.g., no personal statement from Obama, no appearance with the family, no tweets on what a great day this is?”

Compounding the question of tone was national security advisor Susan Rice’s comment on ABC’s This Week that Bergdahl “served the United States with honor and distinction,” a phrase that White House press secretary Jay Carney declined to endorse at a Monday briefing that might’ve left Carney nostalgic for last week’s VA mania.

White House officials would not comment on their media strategy. But Tommy Vietor, a former national security council spokesman, strongly disputed the idea that the White House had oversold the Bergdahl deal. “We should be celebrating the return of Bowe Bergdahl, it’s a wonderful thing,” Vietor said, adding: “This is an important event in the history of the Afghan war. And also it’s a complicated effort. I think you need to explain to the American people what happened and why it’s important. You have a chance to make your case and explain it, and you know there are going to be complications so you do it in as robust a way as you can.”

Vietor says Republicans would have pounced on Obama regardless of how the news was disclosed. “It’s probably inevitable that there were going to be political criticisms, though I think it’s shocking the degree to which Republicans are going after Bowe and his family.”

Bergdahl’s parents add one more shade of gray to the story. Their presence at the White House on Saturday was the apparent product of coincidence: the couple had visited the capitol for a Memorial Day event and then stayed in town for meetings in Congress. Had they been at home in Idaho when the deal was announced, they likely would not have flown to Washington to appear with Obama—and a key visual element of the drama, replayed endlessly on television, might not have occurred.

That’s relevant given that conservatives are now accusing Robert Bergdahl of developing Taliban sympathies. The elder Bergdahl has said he grew his long beard, in the style of some devout Muslims, to better emphathize with his son’s captors. In hopes of communicating with them online, he also learned Pashto, and spoke a few words of the Afghan language at the White House Saturday—prompting a bemused smile from President Obama. Above all, critics point to a recent (and subsequently deleted) tweet in which Robert Bergdahl wrote: “I am still working to free all Guantanamo prisoners. God will repay for the death of every Afghan child, ameen.” [sic]

One might forgive the parent of a hostage for saying whatever he thinks his son’s captors want to hear. Whether it makes sense to associate the president with that parent is, seemingly like everything to do with the Bergdahl saga, a more complicated question.

With reporting by Zeke Miller and Tessa Berenson

TIME Qatar

Watch: Gitmo Detainees Swapped for Bergdahl Arrive in Qatar

The backlash over the U.S. prisoner swap for Srgt. Bowe Bergdahl continues. These are the 5 Guantanamo detainees released in exchange for the American soldier

The U.S released five detainees from Guantanamo Bay over the weekend into the custody of Qatar, in exchange for the release of U.S. Army Sgt. Bowe Bergdahl, who had been captured by the Taliban in Afghanistan nearly five years ago.

The video above—purportedly released by an Afghan news agency—shows the men as they land in Qatar, welcomed by hugs and smiles.

Qatar is believed to have played a crucial role in mediating the release of the American soldier, but the Qatari government remains reluctant to give details about its involvement in the operation. U.S. officials said the men will be subject to security restrictions, including a one-year travel ban.

Are the five Taliban leaders a danger to Americans?

Statistics suggest that the Taliban leaders freed may remain a threat. “Of the 614 Gitmo prisoners who had left the care of the U.S. Department of Defense as of January 14, 2014, 104 were confirmed to have reengaged in terrorism and 74 were suspected to have reengaged,” TIME’s Massimo Calabresi reports.

 

TIME National Security

Statistics Suggest Taliban Leaders Freed For Bowe Bergdahl May Remain A Threat

Are the five Taliban leaders released by the U.S. in exchange for Sgt. Bowe Bergdahl a threat to Americans? On numbers alone, the answer would seem to be yes.

Of the 614 Gitmo prisoners who had left the care of the U.S. Department of Defense as of January 14, 2014, 104 were confirmed to have reengaged in terrorism and 74 were suspected to have reengaged, according to the latest numbers from the Office of the Director of National Intelligence, released in March.

That’s a total recidivism rate of 29%, which suggests that statistically at least one of the Taliban leaders will return to the field to fight Americans in Afghanistan, or elsewhere.

The Obama administration says they’ve taken sufficient measures to mitigate the danger, including having the five spend a year in Qatar under the watchful eye of the Qatari government—and the unlucky CIA station chief in Doha.

But even well-run programs for released Guantanamo Bay detainees have failed in the past. One notable failure was Said al Shihri, who was released to Saudi Arabia in 2007 and put through the country’s famous rehabilitation program. In 2009, he fled Saudi Arabia and helped form Al Qaeda in the Arabian Peninsula (AQAP), the group behind multiple attempted airline bomb attacks against Americans and others.

Another detainee released with al Shihri in 2007 who also went through the Saudi program and also joined AQAP ended up being an asset to the U.S. Mohammad al Fayfi returned to Saudi Arabia after an internal power struggle in AQAP and warned officials of the group’s plot to blow up cargo planes bound for Chicago using powdered explosives hidden in printer cartridges.

But al Fayfi was an outlier when it comes to former Gitmo detainees, say officials familiar with the debate over whether to release the five Taliban leaders.

 

 

TIME Military

If Bowe Bergdahl Is a Deserter, What Should Be Done With Him?

Idaho Hometown Of Released Army Solider Bowe Bergdahl Celebrates His Release
A sign hailing Sergeant Bowe Bergdahl's release in a Main Street window in his hometown of Hailey, Idaho. Scott Olson / Getty Images

Those who have served want the freed soldier held accountable

As Army veterans who served with Bowe Bergdahl continued to denounce what they described as desertion — an act that reportedly led to the death of some of the GIs who tried to find him after his disappearance in Afghanistan — senior military hands took a more measured approach to his ultimate fate at the hands of military justice.

“The circumstances surrounding his departure from the base are well-known by his chain of command, but what is not known is his motivation, which can easily be determined,” says John Keane, who retired as a four-star general, and the Army’s second-ranking officer, in 2003.

The soldiers who served with Bergdahl say he simply deserted his observation post after becoming disenchanted with the war.

“I think he abandoned his post while the other four soldiers were asleep,” Greg Leatherman, Bergdahl’s former squad leader, tells TIME. “He was a loner, he didn’t like to share much with anyone. Read the Koran quite a bit, which I respected. I saw it as him trying to be a better soldier, learning more about the people we were going to work with. Turns out he was preparing.”

Soldiers say at least six U.S. troops died in clashes with the Taliban while hunting for Bergdahl after he went missing and was seized by the Taliban in Paktika province on June 30, 2009. “We know of … guys who died looking for him,” Leatherman said on his Facebook page. “But think of all the Scuba Steves and Cool Guys that got hurt or killed looking for him as well. People we may never know about.”

Keane wants Bergdahl held accountable if what his fellow soldiers say is true. “If he indeed left his post without authority, and there are no extenuating circumstances, then he must be held accountable for his actions,” he says. That “means he should be charged, tried and separated [from the Army] without prison time.” In fact, Keane says, the case could be dealt with “in a lower form of court martial before a single officer and absent a courtroom if he is willing to plead guilty.”

Eugene Fidell, a lecturer on military law at the Yale Law School and co-founder of the National Institute of Military Justice, doubts the case will get that far, even if warranted. “It’s utterly discretionary as a matter of clemency, a matter of judgment, and indeed even as a matter of politics. The authorities can decide this is not a case that they want to do anything about,” he says.

“Let’s assume that the facts demonstrate that he left with an intent to remain away permanently — that is desertion,” Fidell says. “Will the cognizant general officer decide, ‘Look, this guy spent five years [as a prisoner] and we’re just not going to put him through the wringer again?’ No prosecution is mandated by the Uniform Code of Military Justice,” he adds. “We don’t tend to throw the book at these people who are under quite unusual circumstances.”

Charles Jenkins, for example, deserted his Army unit in South Korea in 1965 and lived in North Korea until 2004. He ultimately plead guilty to charges of desertion and aiding the enemy. He received a dishonorable discharge, was stripped to the Army’s lowest rank, forfeited all pay and benefits, and was sentenced to 30 days in prison (he got out six days early for good behavior). He now lives in Japan.

But he was 64 when sentenced (Bergdahl is 28), and no one died trying to find Jenkins after he headed north through the Demilitarized Zone one freezing January night nearly 50 years ago. Bergdahl, Fidell says, could also face the charge of desertion. But given that it allegedly occurred in a non-declared war, the maximum penalty, ironically, would be another five years’ imprisonment, and not the possible death sentence the crime carries during a declared war.

“This is just so grotesque,” argues retired Army officer and author Ralph Peters. “Americans can’t name a single Medal of Honor recipient, but everybody knows the name of an alleged deserter.” He says part of the anger over Bergdahl’s release rests at the doorstep of 1600 Pennsylvania Avenue. “Check out the fury — fury — of his fellow soldiers and veterans,” Peters says. “The big mistake was for the President and his gang to imply that Bergdahl is a hero.”

Peters says Bergdahl needs to face some kind of military justice to determine what happened, and to accept punishment if he is found guilty. “What military people fear is a whitewash that will let him walk with an honorable discharge and full benefits,” he says. “That would be an insult to every person who’s ever served honorably in uniform — giving [an alleged] deserter full lifetime benefits.”

Peters believes a public proceeding is warranted. “He needs a fair trial with public testimony from his comrades and chain of command,” he says. “And from the comrades of those who died while trying to find and free him.”

TIME Foreign Policy

Obama Didn’t Negotiate With ‘Terrorists’ for Bergdahl

Republicans continue to lambaste Barack Obama for releasing five senior Taliban figures from the Guantanamo Bay prison camp in exchange for the captured U.S. solider Bowe Bergdahl. But the story is more complicated than they say

The GOP has several complaints about the controversial deal the Obama Administration negotiated with the Afghan Taliban for the release of Army Sgt. Bowe Bergdahl. Topping the list is the idea that President Barack Obama has violated a sacred rule: Never talk to terrorists. “It has long been America’s unwavering, bipartisan policy not to negotiate with terrorists, especially for the exchange of hostages,” argues George W. Bush’s former U.N. Ambassador, John Bolton. “By trading to release hostages, we are invariably putting a price on the heads of other Americans.” Florida Republican Sen. Marco Rubio agrees, warning that the deal “could encourage future terrorist kidnappings of Americans.”

It may be a political maxim that we don’t talk to terrorists. But that’s not always how it works in practice. The Carter administration had long and intricate negotiations with the Iranians who took dozens of Americans hostage in Tehran in 1979 (and whom Carter himself described as terrorists), winning the hostages’ release after Carter agreed to unfreeze about $11 billion in Iranian assets.

Ronald Reagan’s White House also horse traded with the Iranians for hostages—secretly trading arms for the release of Americans held in Lebanon, in what came to be known as the Iran-Contra affair. (Bolton, to his credit, acknowledges and condemns this infamous episode.)

In the mid-1990s Bill Clinton met with Gerry Adams, leader of the political wing of the Irish Republican Army, then still on the State Department’s terror list. (It was removed after peace accords in 1998.) The British government considered Adams himself a terrorist and urged Clinton not to see him.

During the Iraq War, the Bush administration cut deals with Sunni insurgents in Iraq’s Anbar province—working with and even paying people who had been killing American soldiers.

Even Israel, which is not known for its kid-glove treatment of terrorists, has a recent history of doing business with its most despised enemies. In 2011, the Israeli government freed more than 1,000 prisoners in return for Hamas’ release of the captured Israeli soldier Gilad Shalit.

Despite that history, however, Washington is quite wary of rewarding terrorists who seize hostages. In recent years, al-Qaeda has reaped millions of dollars from kidnapping ransoms paid by the west. “Much of the money comes with the complicity of Western governments,” the Los Angeles Times reported last fall—but apparently from ones “that have rebuffed British and American exhortations not to pay ransoms.” The logic, as noted by Rubio, is clear: Pay up for hostages and you encourage the snatching of more hostages.

The difference with Bergdahl, as Obama argues, is that he wasn’t really a hostage grabbed by terrorists. He pretty neatly fit the classic definition of a prisoner of war. He had just left a military outpost in an obvious war zone while (presumably) wearing his uniform. History is loaded with examples of nations—including America—making deals to free their soldiers.

And however nasty the Taliban may be, it’s not really a “terrorist” enemy as we commonly understand the word. The group is not on the State Department’s official list of terrorist organizations and has has long been a battlefield enemy in the ground war for control of Afghanistan. It is not plotting to, say, hijack American airplanes—even if it does have sympathies with people who are. Ditto the Taliban leaders released over the weekend. They are members of a savage and deplorable organization. But unlike, say, Khalid Sheikh Mohammad, they have no history of plotting attacks on the U.S. homeland.

Given all that, the real debate isn’t whether Obama negotiated with terrorists—he didn’t. The mystery lies in the particulars of the deal. Why trade five prisoners for just one—a soldier whom many veterans are bitterly calling a deserter? Why treat such a complicated deal as a resounding triumph, complete with a dramatic White House news conference?

Obama may have cut a lousy deal. But he hardly violated a sacred American principle.

TIME Military

The 6 U.S. Soldiers Who Died Searching for Bowe Bergdahl

Troops suggest that Bergdahl's desertion makes him more traitor than hero

Army Sergeant Bowe Bergdahl was freed by the Taliban over the weekend after they held him for nearly five years, in exchange for five Taliban leaders, who will spend a year cooling their heels in Qatar. You might have heard about it on the news.

Chances are you haven’t heard of the six soldiers who died hunting for him after he went missing, according to military officials. Now that Bergdahl has been sprung—in exchange for five senior Taliban officials, who had been imprisoned at Guantanamo—soldiers who served with Bergdahl are grumbling that he deserted and shouldn’t be hailed as a hero, especially given the resulting cost in American lives.

The bile surrounding his rescue is blunt on his Fort Richardson, Alaska brigade’s Facebook page:

  • “I say we welcome him home with a firing squad.,” one says. “He’s a piece of trash and everyone from [Fort Richardson] knows it the only person less American than that man is the president for giving up 5 hvt’s [High-Value Targets]”
  • “Now he can stand trial for deserting his post,” says one message on his unit’s Facebook page—a sentiment that has garnered 44 “likes”.
  • “Do you know how many families never saw their loved ones because of him?” a third poster asked.

Commenters who suggested such comments were unduly harsh were dismissed by and large. “Maybe if you knew the truth and the sacrifices made from people in our units in Alaska to find this douche you wouldn’t feel the way you do,” one responded to a poster urging restraint. “I feel worse for the kids who have to grow up fatherless cause their daddies died looking for this punk.”

Tellingly, President Obama lauded the “courage” of Bergdahl’s parents throughout his imprisonment, but merely extended an unadorned “welcome home” to Bergdahl himself.

Conflicting reports have surrounded Bergdahl’s disappearance. But there is evidence that he was upset over U.S. policy in Afghanistan and deserted his post in a war zone in Paktika province, in the southeastern part of the country by the Pakistan border, while serving with the 1st Battalion, 501st Infantry Regiment, 4th Brigade Combat Team, 25th Infantry Division.

On Sunday, Defense Secretary Chuck Hagel didn’t issue Bergdahl a blank check for his pre-capture actions. “Our first priority is assuring his well-being and his health and getting him reunited with his family,” he said. “Other circumstances that may develop and questions, those will be dealt with later.”

Soldiers who fought in Afghanistan are waiting. “Those allegations can—and should—be handled administratively or legally once he’s back,” says a former Army officer who served in Afghanistan. Because he’s now working at a senior level in the U.S. government, he wouldn’t allow his name to be used. “If he did, in fact, desert, then he unnecessarily risked the lives of many brave people.”

Pentagon officials have suggested that Bergdahl will likely not be charged with any violation of the Uniform Code of Military Justice, believing that five years in Taliban custody was punishment enough.

But those irate over Bergdahl fear that the nation has forgotten the men they say were lost in the hunt for him:

Bowen Army

Staff Sergeant Clayton Bowen, 29, of San Antonio, Texas, and Private 1st Class Morris Walker, 23, of Chapel Hill, N.C., were killed by a roadside bomb in Paktika province on Aug. 18, 2009, while trying to find Bergdahl. Like Bergdahl, they were part of the 4th BCT from Fort Richardson, Alaska.

Bowen’s mother last heard from her son the night before he died. “Clay called me around midnight to tell me I

wouldn’t hear from him for a few days,” she said. She never heard from him again, although she can still hear his voice in the two CDs he recorded with the 82nd Airborne All-American Chorus. “He was the only bass in the group,” she said, “so you could always hear him.”

“What I think of first when I think of Morris is his smile because he was always smiling,” his junior-high teacher,

Walker Army

Wanda Bordone, told the Associated Press after he died. “He had a great sense of humor, lots of friends.”

Staff Sergeant Kurt Curtiss, 27, of Murray, Utah, died Aug. 26 in Paktika Province, Afghanistan, of wounds suffered when he was shot while his unit was supporting Afghan security forces during an enemy attack. Like Bergdahl, Bowen and Walker, he was part of the 4th BCT.

Curtiss Army

“I’ll never forget you Kurt,” Adrian Ramirez a fellow soldier from Fort Richardson, posted on a memorial site. “You were my first team leader from the beginning and my squad leader to the end. I will miss you and all the memories I have shared with you.”

2nd Lieutenant Darryn Andrews, 34, of Dallas, Texas, died Sept. 4 in Paktika Province when enemy forces attacked his vehicle with an improvised explosive device and a rocket-propelled grenade. Like Bergdahl, Bowen, Walker and Curtiss, Andrews was part of the 4th BCT.

Andrews Army

“We grew up with an enormous amount of pride for our nation,” Andrews’ mother, Sondra, told the Amarillo Globe-News. That was understandable: his father. grandfather and uncle had served in uniform. “We passed it on to our children, never thinking we would pay the ultimate sacrifice.”

Staff Sergeant Michael Murphrey, 25, of Snyder, Texas, died Sept. 6 in Paktika province after being wounded by an IED. Like Bergdahl, Bowen, Walker, Curtiss and Andrews, Murphrey was part of the 4th BCT.

“On his 17th birthday his family took him skydiving and after that,” his obituary read, “he decided he wanted to be an Army paratrooper.”

Murphrey Army

On Sept. 4, 2009, Private 1st Class Matthew Martinek, 20, of DeKalb, Ill., was seriously wounded in Paktika province when Taliban forces attacked his vehicle with an improvided explosive device, a rocket-propelled grenade and small-arms fire.

The U.S. military rushed him to Landstuhl Regional Medical Center in Landstuhl, Germany—the same medical facility where Bergdahl is now being treated.

Bergdahl is expected to fly home to the U.S. soon for additional care and counseling.

Martinek never got that chance. He died a week after the attack—on Sept. 11.

Martinek “tried not to talk too much about what he was doing, but he said he liked helping people,” his brother, Travis Wright, told the AP.

Martinek Army

Like Bergdahl, Bowen, Walker, Curtiss, Andrews and Murphrey, Martinek was part of the 4th BCT.

The diversion of these men and their units to the hunt for Bergdahl thinned the ranks of U.S. troops elsewhere in the region, contributing to several more American KIAs, U.S. soldiers who were there at the time believe.

Military justice can be swift and merciless, although that appears unlikely in this case. But the past cannot be erased, and it’s that legacy that gives the troops involved a markedly different view of Bergdahl and his rescue than that of most Americans sitting at home, paying scant attention to the nation’s only soldier missing in action in Afghanistan until Saturday.

The reason, for anyone who has been in combat, is pretty simple. Soldiers never forget. Civilians rarely remember.

TIME foreign affairs

The U.S.-Afghanistan Prisoner Swap Doesn’t Signal Peace on the Horizon

Idaho Hometown Of Released Army Solider Bowe Bergdahl Celebrates His Release
A sign announcing the release of Sgt. Bowe Bergdahl sits in the window of the Hailey Paint and Supply store on Main Street June 1, 2014 in Hailey, Idaho. Scott Olson—Getty Images

The Taliban remains ideologically divided, and the Afghan government isn't necessarily prepared for talks.

Bowe Bergdahl, the last remaining U.S. POW in Afghanistan, has been released in exchange for five Taliban detainees held at Guantanamo.

This is, quite simply, a remarkable achievement.

In past wars, the U.S. has had greater success recovering its POWs after the fighting has stopped, and after peace agreements have been signed. Many POWs from the Korean War returned home after the 1953 armistice. Nearly 600 from the Vietnam War were freed after the 1973 Paris Peace Accords ended that conflict. When American POWs have been recovered during wartime—and the U.S. is still very much at war in Afghanistan—it has typically happened through rescue missions, not negotiations. Recall the case of Jessica Lynch in Iraq.

Of course, in Afghanistan today, the circumstances are quite different. The U.S. has long viewed a prisoner swap with the Taliban as a prerequisite for, not a consequence of, a peace deal—a deal Washington fervently desires as it winds down its military involvement in a war that it couldn’t win on the battlefield.

The Taliban has articulated its conditions for joining a peace process. One is a full withdrawal of foreign troops from Afghanistan. In recent days, President Obama, by vowing to remove all U.S. soldiers from the country by the end of 2016, has effectively obliged. Another Taliban demand is the release of its senior members from Guantanamo. Thanks to the Bergdahl deal, five of them are now in Qatar.

No wonder many observers now hope that a peace process with the Taliban could soon be underway.

Sorry to rain on their parade, but here’s the sad truth: peace is likely to remain elusive in Afghanistan, even with the successful prisoner swap.

Consider, first, that the Taliban is an ideologically divided organization. Some of its factions are more moderate and pro-peace than others, and influential hardliners may well reject the idea of using the prisoner swap as a confidence-building measure toward broader negotiations. Earlier this year, several Taliban leaders exploring peace possibilities were mysteriously gunned down in Pakistan. No one knows why, or by whom—though it’s quite possible their hardline, anti-peace Taliban colleagues are to blame.

Second, previous efforts to jumpstart peace talks have failed miserably. The most notorious recent failure was when a Taliban office was opened in Qatar last year to facilitate negotiations. This effort was scuttled, and the office closed, following disputes that arose after it became clear the Taliban was treating the office as a foreign embassy, not a negotiating facility.

Then there’s the case of Mullah Abdul Ghani Baradar, a high-ranking Taliban official regarded as close to supreme leader Mullah Omar. Baradar, held by Pakistan since 2010, was released last year in a goodwill gesture meant to rejuvenate the peace process. And yet nothing has come out of this move. Some Afghans believe he was never truly released. Kabul, in fact, has accused Pakistan—despite that country’s strong protestations to the contrary—of obstructing the peace process. This is no minor accusation, given the close relationship Pakistan has historically enjoyed with the Taliban.

Finally, from an operational standpoint, the Taliban has little incentive to pursue peace. In the coming months—and years—it stands to achieve tremendous battlefield successes. International combat forces are withdrawing, and Afghan security forces—though much improved in recent years—remain fragile. Not only do they continue to lack warfighting capacities, but they also suffer from more fundamental deficiencies such as illiteracy, drug abuse and desertions.

Additionally, formidable Pakistani militant organizations—including the Pakistani Taliban and the Lashkar-e-Jhangvi, a vicious sectarian extremist group—have vowed to join forces with the Taliban. Already, these fighters are coursing into Pakistan’s tribal areas to prepare for war in Afghanistan, both this year and beyond. Given all this, why would the Taliban choose to put down its weapons now?

All this said, by no means should the possibility of peace talks be discounted. For the first time, several key Taliban preconditions for talks have been fulfilled. Also, the Taliban could decide that the international troop withdrawal gives it great bargaining power, and that now is the time to sit down and press for some major concessions from Kabul—including some kind of role in a future government.

However, this assumes that the Taliban is truly open to the principle of peace, which is far from certain. And it also assumes that Afghanistan’s own government is prepared for talks. Certainly, the Hamid Karzai-led government was open to them; Karzai himself has reportedly participated in short-lived backchannel talks with the Taliban. Yet it’s less clear if the country’s next leader, to be determined by a June 14 electoral runoff, will be as enthusiastic.

The upshot? It’s well worth celebrating Bergdahl’s release—but let’s not view it as a precursor to a peace deal that ends America’s longest-ever war.

Michael Kugelman is the senior associate for South Asia at the Woodrow Wilson International Center for Scholars in Washington, DC. He can be reached at michael.kugelman@wilsoncenter.org or on Twitter @michaelkugelman.

TIME White House

Republicans Criticize White House Over Bergdahl Exchange

Ted Cruz, Mike Rogers and others say the terms of Bergdahl's release could put the U.S. in a dangerous position

A day after the country celebrated U.S. Army Sgt. Bowe Bergdahl’s return to American custody after nearly five years in captivity, the White House found itself playing defense Sunday for failing to notify lawmakers in advance before transferring five Guantanamo Bay detainees in exchange for Bergdahl’s freedom.

House Armed Services Committee Chairman Howard “Buck” McKeon (R-Calif.) and Senate Armed Services Committee ranking member James M. Inhofe (R-Okla.) accused President Barack Obama in a statement Saturday of breaking the law by failing to give Congress proper notice of the transfers. The law requires the White House to tell lawmakers about Guantanamo transfers 30 days in advance. Defense Secretary Chuck Hagel, however, told Congress about the five Bergdahl transfers Saturday morning, just hours before the prisoners were on a plane and headed to Qatar.

“In executing this transfer,” McKeon and Inhofe said, “the President … clearly violated laws which require him to notify Congress thirty days before any transfer of terrorists from Guantanamo Bay and to explain how the threat posed by such terrorists has been substantially mitigated. Our joy at Sgt. Berghdal’s release is tempered by the fact that President Obama chose to ignore the law, not to mention sound policy, to achieve it.”

Obama himself signed the 30 days rule into law last year. He also wrote a controversial signing statement along with that law in which he said he believes the President is allowed to “act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.” The Bergdahl deal is the first in which he’s put this belief into practice. (It’s also worth noting Obama campaigned in 2008 against the use of signing statements to enhance the executive branch’s power).

Hagel, along with White House National Security Advisor Susan Rice, were out playing defense for the White House on Sunday. Hagel said while en route to Afghanistan Sunday that Bergdahl’s worsening health meant the White House needed to move quickly to make the exchange. And Rice, making the Sunday show rounds, told CNN’s Candy Crowley that the administration had previously told Congress a Bergdahl-style scenario was a possibility.

” … this opportunity is one that has been briefed to Congress when we had past potential to have this kind of arrangement,” said Rice on CNN’s State of the Union.

“So it wasn’t unknown to Congress,” Rice continued. “The Department of Defense consulted with the Department of Justice. And given the acute urgency of the — the health condition of Sgt. — Sgt. Bergdahl and given the president’s constitutional responsibilities, it was determined that it was necessary and appropriate not to adhere to the 30 day notification requirement, because it would have potentially meant that the opportunity to get Sgt. Bergdahl would have been lost.”

Other Republicans, meanwhile, knocked the White House over what they said was a move that will put U.S. troops at risk in the future. Republican Texas Senator and potential 2016 presidential candidate Ted Cruz pounded home that point Sunday on This Week, saying the administration paid a “dangerous price” to retrieve Bergdahl.

“How many soldiers lost their lives to capture those five Taliban terrorists that we just released?” Cruz asked ABC’s George Stephanopoulos. “Ambassador [Susan] Rice basically said to you, yes, U.S. policy has changed. Now we make deals with terrorists. And the question going forward is, have we just put a price on other U.S. soldiers? What does this tell terrorists, that if you capture a U.S. soldier, you can trade that soldier for five terrorists we’ve gone after?”

House Intelligence Committee Chairman Mike Rogers (R-Mich.), meanwhile, said during Sunday State of the Union that “if you negotiate here, you’ve sent a message to every al-Qaeda group in the world — by the way, some who are holding U.S. hostages today — that there is some value now in that hostage in a way that they didn’t have before.”

And Sen. John McCain (R-Ariz.), a former P.O.W. himself, was also skeptical of the exchange. “I am eager to learn what precise steps are being taken to ensure that these vicious and violent Taliban extremists never return to the fight against the United States and our partners or engage in any activities that can threaten the prospects for peace and security in Afghanistan,” said McCain in a statement.

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