TIME Afghanistan

This Is Why the Taliban Are Saying Bergdahl Was Treated Well

Bergdahl made several friends among his Taliban captors, a Taliban commander told TIME

Before U.S. Army Sgt. Bowe Bergdahl walked toward the American chopper Saturday that would take him away after five years of captivity, the Taliban made sure to give him a tunic set, along with a woven scarf that can also be worn as a turban, as a parting gift.

A Taliban commander close to the negotiations over the release of Bergdahl told TIME Thursday that “we did whatever we could to make [Bergdahl] happy.”

But why would a Taliban commander – who has been known to TIME for several years for supplying reliable information – want the world to think the Taliban treated Bergdahl well?

“It’s important to them that the Taliban be recognized as a legitimate Afghan political entity,” says TIME Middle East Bureau Chief Aryn Baker in the video above. “And video of Bowe’s release, posted the Taliban’s Facebook page, gave them the validation they have long sought.”

Watch the full conversation with Baker above.

TIME Afghanistan

Behind the Scenes of Bowe Bergdahl’s Release

Captured US Solider
Sgt. Bowe Bergdahl in an undated image provided by the U.S. Army. U.S. Army/AP

Asked whether the Taliban would be inspired by the exchange to kidnap others, a commander laughed. “Definitely."

In the days and hours leading up to the release of Sergeant Bowe Bergdahl last week, his Taliban captors in Pakistan prepared for a big send-off. Those selected to physically hand Bergdahl over to U.S. officials at a pre-arranged location on the other side of the border in Afghanistan rehearsed the messages they wanted to convey to the American people. A videographer was assigned to cover the event, for propaganda purposes. And those closest to Bergdahl commissioned a local tailor to make him a set of the local tunic and trousers in white, which, given as a gift, denotes a gesture of respect.

“You know we are also human beings and have hearts in our bodies,” a senior Taliban commander affiliated with the Haqqani network, which was holding Bergdahl captive, tells TIME. “We are fighting a war against each other, in which [the Americans] kill us and we kill them. But we did whatever we could to make [Bergdahl] happy.”

The commander, who has been known to TIME for several years and has consistently supplied reliable information about Bergdahl’s captivity, is not authorized by his superiors to speak to the media, so he has asked not to be identified by name. The commander spoke to TIME by telephone from an undisclosed location in Afghanistan.

Bergdahl, who was the only known remaining U.S. prisoner of war from the long conflict in Afghanistan, had learned basic Pashto during his incarceration and had made several friends among his Taliban captors, according to the commander. The tunic set, along with the woven scarf that can also be worn as a turban, but is draped across Bergdahl’s shoulders in the Taliban video documenting his release, was a parting gift designed to demonstrate no personal ill will, says the commander: “We wanted him to return home with good memories.”

Bergdahl’s release, as part of the first prisoner exchange between the U.S. and the Taliban in 13 years of war, was the culmination of a two-and-a-half-year process marred by Taliban intransigence and Afghan government meddling that eventually saw the near simultaneous transfer of five top-level Taliban officials from detention in Guantánamo Bay to a form of house arrest in Qatar. The outcome has sparked fierce criticism from Republicans in Congress.

So dispirited was Bergdahl with the process, says the commander, that he didn’t even believe his captors when they announced his pending release. Bergdahl had been there once before, in March 2012, when negotiations were so close that he had already been handed over to senior members of the Taliban council in Afghanistan conducting the talks. When they collapsed, Bergdahl was shuttled back to Haqqani captivity in Pakistan’s ungoverned tribal areas along the border. “That’s why he didn’t trust us this time when he was told about his likely release,” says the commander.

It is not entirely clear what made the negotiations more successful this time around, other than the sense of urgency triggered by Bergdahl’s apparent declining health and U.S. plans to significantly reduce military troop numbers in Afghanistan over the next couple of years. For the Taliban, it doesn’t matter. They see the exchange as an unmitigated victory. “Our talks finally proved successful for the prisoners’ swap,” says the commander. “We returned our valued guest to his people and in return, they freed our five heroes held in Guantánamo Bay since 2002.”

Another senior Taliban commander, who is close to the senior Taliban leadership based in Kandahar, Afghanistan and Quetta, Pakistan, and is close to the negotiations, describes scenes of intense jubilation among the Taliban leadership and their supporters. Candies and sweet pastries are being passed around, he says, speaking to TIME via telephone from the Kandahar area. Those close to the leadership and the detainees are feasting on “whole goats cooked in rice” — a special meal usually reserved for celebrations. “I cannot explain how our people are happy and excited over this unbelievable achievement.” (He too has been known to TIME for several years.) “This is a historic moment for us. Today our enemy for the first time officially recognized our status.”

The news of the detainees’ release, says the commander from Kandahar, spread like a wildfire. “Besides our field commanders and fighters, our leader Mullah Mohammad Omar is so happy and is anxiously waiting to see his heroes,” he says.

There was some disgruntlement among Taliban ranks over the terms, admits the Kandahar commander. Some members wanted a ransom payment for Bergdahl, in addition to the release of the Guantánamo detainees. But the leadership prevailed. “We told them that these five men are more important than millions of dollars to us,” he says. He was more tolerant of complaints from Taliban foot soldiers who pointed out that for all the celebrations surrounding the officials’ release, there was no reward or recognition for the Taliban fighters who captured Bergdahl in 2009. But that’s not likely to get in the way of future attempts to kidnap American soldiers, across all ranks.

Asked whether the Taliban would be inspired by the exchange to kidnap others, he laughs. “Definitely,” he says. “It’s better to kidnap one person like Bergdahl than kidnapping hundreds of useless people. It has encouraged our people. Now everybody will work hard to capture such an important bird.”

— With reporting by Mushtaq Yusufzai / Peshawar

TIME Afghanistan

Taliban Commander: More Kidnappings to Come After Bergdahl Deal

U.S. Army Sergeant Bowe Bergdahl waits in a pick-up truck before he is freed at the Afghan border
U.S. Army Sergeant Bowe Bergdahl (C) waits in a pick-up truck before he is freed at the Afghan border, in this still image from video released June 4, 2014. Al-Emara/Reuters

Behind the Scenes of Bowe Bergdahl’s Release

A Taliban commander close to the negotiations over the release of U.S. Army Sgt. Bowe Bergdahl told TIME Thursday that the deal made to secure Bergdahl’s release has made it more appealing for fighters to capture American soldiers and other high-value targets.

“It’s better to kidnap one person like Bergdahl than kidnapping hundreds of useless people,” the commander said, speaking by telephone on condition of anonymity because he is not authorized to speak to the media. “It has encouraged our people. Now everybody will work hard to capture such an important bird.”

The commander has been known to TIME for several years and has consistently supplied reliable information about Bergdahl’s captivity.

The U.S. agreed on May 31 to exchange five Taliban commanders from Guantanamo Bay, Cuba for Bergdahl, America’s only living prisoner of war. Following the deal, the outpouring of relief by those who had long lobbied to “Bring Bowe Home” was soon eclipsed by accusations and recriminations as Republican lawmakers accused the administration of making a dangerous precedent.

“What does this tell terrorists?,” Republican Senator Ted Cruz said on ABC’s This Week the day after Bergdahl’s release. “That if you capture a U.S. soldier, you can trade that soldier for five terrorist prisoners?”

With reporting by Mushtaq Yusufzai / Peshawar

TIME National Security

Bowe Bergdahl ‘Proof of Life’ Video Fails to Convince Senate Skeptics

McCain Speaks After Meeting on Bergdahl release at US Capitol
Republican Senator from Arizona John McCain, center, speaks to the media after a briefing by Obama administration officials to all U.S. Senators about the release of American hostage Bowe Bergdahl in the U.S. Capitol in Washington, D.C., June 4, 2014. Jim Lo Scalzo—EPA

The Obama Administration showed the Senate a classified Taliban "proof of life" video of Sgt. Bergdahl, but some lawmakers remain skeptical that his health was as dire as the Administration has claimed

A classified Obama Administration briefing for the U.S. Senate Wednesday night failed to convince several lawmakers that the freedom of America’s final Afghanistan prisoner of war, Army Sgt. Bowe Bergdahl, had been worth the price of releasing five Taliban leaders from the detention center at Guantanamo Bay.

A main feature of the briefing was the presentation of a short “proof of life” video of Bergdahl, which administration officials have said led them to believe that Bergdahl’s health was in danger. After watching the video, estimated to last about 90 seconds by Illinois Republican Sen. Mark Kirk, several Senators said they did not see evidence of an imminent threat to his life.

“It appeared that he was drugged and that he was barely responsive in the video,” said Sen. Saxby Chambliss, the ranking Republican on the Senate Intelligence Committee. “I don’t think from a health standpoint there was any issue that dictated the release of these five [Taliban members] in exchange for Bergdahl.” Chambliss, who says he thinks the video should be released to the public, added that he could not speak to whether or not Bergdahl’s safety was at risk.

“His health was not the critical factor,” said Sen. Joe Manchin, a Democrat from West Virginia. ”In that one video you could tell that he had been drugged. He was in a different state. That was back in December, five months ago.”

“That did not sell me at all,” Manchin added. “He was not in that type of dire situation when he was released—didn’t look sick to me.”

Nonetheless, Kirk said he believes the video still had some effect on influencing President Obama to make a deal for Bergdahl’s release. “I would definitely think that it would have an emotional impact on the President, which is probably why the Taliban released it,” said Kirk. “He didn’t look good. I understand the emotional power of that video.”

The Administration officials that briefed the Senate included Deputy National Security Advisor Tony Blinken, as well as representatives from the State Department, the Office of the Director National Intelligence and the Joint Chiefs of Staff.

TIME Foreign Policy

New Videos Show Western Couple Held Captive in Afghanistan

Bowe Bergdahl's release has led the families of Josh Boyle and Caitlan Coleman to release videos of the couple, who were captured in Afghanistan

The families of an American and a Canadian who were captured by the Taliban in 2012 are publicizing videos of the couple in an attempt to speed up their release from captivity.

The videos obtained by the Associated Press and published Wednesday show Josh Boyle and Caitlan Coleman in an unknown location, with Coleman wearing a black headscarf and her husband Boyle’s beard long and untrimmed. Both look significantly thinner than photos taken of them before their capture.

Boyle, a Canadian citizen and Coleman, an American, were passing through Afghanistan while traveling through former Soviet Republics including Kazakhstan, Tajikistan and Kyrgyzstan. Coleman, who was pregnant during their travels, checked in regularly with her family at home until communication abruptly stopped on Oct. 8, 2012.

Coleman’s father received the videos in July and September of 2013, the AP reports, emailed from an Afghan man who claimed to have ties to the Taliban.

After the release last week of Sgt. Bowe Bergdahl, the families of the captured couple decided to appeal to the U.S. and Canadian governments for assistance. They said they are disappointed their children were not freed as part of the Bergdahl deal.

“It would be no more appropriate to have our government turn their back on their citizens than to turn their backs on those who serve,” Josh Boyle’s father Patrick Boyle said.

The families have not received any ransom demands, and it’s unclear when or where the videos were filmed.


TIME Afghanistan

Bergdahl’s Idaho Hometown Cancels Homecoming Celebration

Bowe Bergdahl Hailey Idaho
Flags and balloons, marking the release from captivity of Sgt. Bowe Bergdahl, adorn the sidewalk outside a shop in the soldier's hometown of Hailey, Idaho, on June 4, 2014. Brian Skoloff—AP

Bergdahl's hometown is canceling a celebration for the returned sergeant at the end of the month amidst a rising backlash

Updated 4:45 p.m. E.T. on June 4

A rally in U.S. Army Sgt. Bowe Bergdahl’s Idaho hometown celebrating his release after nearly five years of captivity has been canceled amid growing questions about the circumstances of the soldier’s capture.

The joy over Bergdahl’s return among residents of the small mountain community of Hailey, Idaho has been dampened by claims that he abandoned his post. Some have also claimed that the subsequent search for Bergdahl cost the lives of up to six soldiers, Reuters reports.

Hailey’s city administrator, Heather Dawson said town officials called off the June 28 rally at the request of organizers. The town “will be unable to safely manage the number of people expected,” Dawson told Reuters.

But residents say they support Bergdahl either way and that they’re continuing to prepare for a June 28 rally in his honor.

“People in Hailey have been aware for some time that there were questions about how Bowe came to be captured, and that there was a chance that Bowe could be in trouble when he came home,” said Stefanie O’Neill, a rally co-organizer.

The backlash over Bergdahl’s release reached a fever pitch early this week amid reports that the White House overrode interagency security processes to free five Taliban higher-ups in exchange for Bergdahl’s release. There has also been increasing scrutiny of Bergdahl’s absence from his post in Afghanistan before his capture.


TIME Military

Watch The Bowe Bergdahl Video

A close look at video of Bowe's release

Sure, it’s grainy, with the narrator speaking a foreign language. But the video released by the Taliban on Wednesday is more revealing than anything the Pentagon has said about the late-Saturday afternoon rendezvous deep in a Khost valley where Army Sergeant Bowe Bergdahl began his long ride home.

The cinéma vérité puts us on the ground inside a remote corner of Afghanistan. We’re sharing the (edited) view of the cameraman and the 17 other Taliban insurgents who gathered to meet the modified UH-60 Black Hawk chopper that touched down in eastern Khost province to begin Bergdahl’s long trip home after nearly five years in Taliban captivity:

—Bergdahl is sitting in the right rear seat of a pickup truck. His posture is unusual; his hands may be bound in some way underneath his thighs.

—He appears dazed at best, terrified at worst. At a minimum, he seems plainly out of it. He listens as a masked captor, leans into the vehicle. “Don’t come back to Afghanistan,” the armed man says in Pashto. “You won’t make it out alive next time.”

—Bergdahl, wearing traditional Afghan garb under a striped white shawl, is pale and gaunt, as if he’s been inside for years. He’s blinking incessantly, as if he hasn’t seen bright light for a long time, either.

—A Taliban flies a white flag, like that flown by the Taliban government during its five years in power, on what appears to be a freshly-cut branch.

—Bergdahl wipes dust, or a tear, from his left eye, just before the Taliban speaking to him taps him softly three times on his right shoulder.

—One Taliban is armed with what appears to be a radio, apparently keeping superiors informed of what’s happening on the ground.

—A Black Hawk helicopter appears overhead.

—Bergdahl stands outside the vehicle with one of his captors. His eyes seem to follow the descent of the approaching chopper.

—Bergdahl and a pair of Taliban meet with three U.S. personnel, in civilian clothing.

—As Bergdahl is led to the helicopter, his gait appears unsteady. That could be because he had been shackled for much of the time, including while he slept, following a reported escape attempt. A fellow American holds him by the left arm, helping to ease him over the rough terrain.

—The U.S. troops wave goodbye to the Taliban. The Taliban wave back. Bergdahl doesn’t look back, and doesn’t wave. His head’s bearing suggests his eyes are focused on the helicopter in front of him.

—U.S. troops pat down Bergdahl before they let him into their helicopter, filled with troops in uniform. That’s simple due diligence. Bergdahl could have been carrying a weapon, or drugged and booby-trapped by his captors.

Any high-risk, high-profile military operation such as this one is an iceberg, where cameras can capture only a small piece of what’s there. Lurking overhead are more helicopters crammed with additional troops if the first chopper ran into any kind of trouble—mechanical or otherwise.

“They took every possible precaution we could take,” Defense Secretary Chuck Hagel said following the pickup, “through intelligence, surveillance, reconnaissance, through having enough of our assets positioned in the right locations having enough helicopters, doing everything we possibly could do to anticipate any violence or anything going in a different direction.”

Most critical, of course, were the anonymous Special Operations troop on board Black Hawk #41 that touched down for a minute deep inside Taliban-controlled territory: the pair of pilots that kept it flying, the crew chief that kept it humming, and the soldiers who escorted Bergdahl across their helicopter threshold bound for home.


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

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