JURIST Guest Columnist Jonathan Hafetz of the Seton Hall University School of Law discusses some of the lessons offered by the Bergdahl exchange as they relate to US policy on Guantanamo …

The Obama administration has confirmed that it will continue to pursue its longstanding goal of closing the Guantanamo Bay detention facility, notwithstanding the uproar over the recent return of five Taliban prisoners in exchange for the release of US Sgt. Bowe Bergdahl. Below are three lessons offered by the Bergdahl exchange for US policy on Guantanamo.

1. The Perils of Incrementalism

The Bergdahl exchange highlights the downsides of an incrementalist approach to closing Guantanamo. Each case has been thoroughly reviewed, and 78 of the remaining prisoners have been cleared unanimously by all relevant agencies. There are also countries such as Uruguay willing to take detainees. Yet, fearful of political blowback, the Obama administration has been reluctant to transfer detainees more quickly because of the possibility that they might reengage in conduct that could be deemed hostile. The overriding fear is not a fear of the detainees themselves, but rather a political fear that if a former detainee does something at some point in the future it will be used against the Obama administration, as Benghazi was. The desire for zero-risk guarantees in closing Guantanamo is impossible. It has not merely slowed the closure process. By prolonging the prison’s existence, it has provided a fresh stream of opportunities for critics to attack the premise of closure and for recalcitrant lawmakers to erect new obstacles to achieving this goal.

The reality is that Guantanamo has been closing for more than ten years. Apart from the transfer of 14 “high-value detainees” from secret CIA jails in 2006, virtually no prisoners have been brought to Guantanamo since 2004. The paradox is that the more slowly the prison closes, the more difficult it becomes to close it, and the more concessions it will require (Note here the version of the 2015 National Defense Authorization Act (NDAA) [PDF] reported out of the Senate Armed Services Committee (SASC) that could be read to narrow the scope of habeas review and to bar the release of any detainees in the US if transferred there).

As long as Guantanamo stays open, it remains vulnerable to fear mongering and the vagaries of global events, which tend to increase resistance to closing the prison and releasing its prisoners. Take, for example, President Obama’s suspension of detainee transfers to Yemen in 2010 in response to reports that Umar Farouq Abdulmuttalab, who attempted to blow up a commercial airline flight bound for Detroit, had been radicalized in Yemen. That decision helped bring transfers out of Guantanamo to a halt. Although the administration subsequently eliminated the Yemen-transfer ban, the SASC version of the 2015 NDAA would institute a one-year ban on all transfers to Yemen.

The Bergdahl-Taliban exchange is only the latest instance of how a media frenzy can embolden those who want to keep Guantanamo open and hold the men there in US custody indefinitely. The exchange, while the right decision, highlights the downside of an incrementalist approach in which risk aversion drives US policy. Such caution, it might be argued, is necessary given political realities. But rather than successfully manage the opposition, excessive fear of political fall-out has allowed that opposition to take root and fester. In fact, the Bergdahl exchange suggests that the administration has more latitude to go bigger and faster than it has previously acknowledged, notwithstanding the roadblocks in its path. Which brings me to the second lesson.

2. The NDAA’s Transfer Restrictions: Still Room to Maneuver

Much criticism of President Obama in the Bergdahl matter has focused on his failure to provide the required 30-day advance notice to Congress before transferring any Guantanamo detainee. Assuming arguendo notice was required in the unique context of prisoner exchange conducted under exigent circumstances (see Defense Secretary Hagel’s remarks here [PDF] defending the exchange), notice has not typically been the sticking point in getting detainees out of Guantanamo. Instead, the main supposed obstacle to transfer has been the separate provisions of the 2014 NDAA requiring the Secretary of Defense to consider various factors before transferring detainees, including the steps US officials have taken to mitigate the future risk a detainee could pose and the national security interest in the detainee’s transfer. While previous NDAAs contained more stringent requirements, substantial risk mitigation has always been the standard for transfer, even during the Bush administration. And under current law, the administration no longer needs to certify that all factors have been met; rather, it must only provide notice that they have been considered and that transfer will occur after 30 days.

What is striking about the Bergdahl-Taliban deal, however, is how little an obstacle this substantive requirement poses when the President makes it a priority to get the relevant players on board and move a prisoner out of Guantanamo.

Unlike the procedural advance notice requirement, the substantive requirement is malleable, with ample room for the administration to argue why transferring particular prisoners from Guantanamo is in the US national interest. In short, if the required consideration of security factors can be satisfied for the five Taliban prisoners sent back to Afghanistan, it can be met for many other detainees, particularly for the 78 cleared prisoners.

3. War Means Prisoners Go Home When the War Ends

As others have noted, the US would have been legally obligated to release the five Taliban detainees in the relatively near future anyway, given the projected US withdrawal from Afghanistan. The US will similarly be required to release other Guantanamo detainees once the war is over. While the Obama administration does not expressly claim otherwise, it has not forcefully made the case that the same legal principles that have allowed the US to detain prisoners at Guantanamo for more than 12 years will also require it to release them, like it or not (unless it can charge them with a crime). Whatever disagreement there may be about when the war is over, or whether an armed conflict with al Qaeda even continues today, the obligation to promptly repatriate wartime prisoners when the relevant conflict ends is black-letter international law. Further, there is an argument to be made (I’ve discussed it here), that long-cleared detainees are not detainable now even if hostilities continue on the theory that their detention is no longer necessary to prevent their return to hostilities.

One of the most troubling aspects of the Bergdahl controversy is not whether the Taliban prisoners pose a future threat, but rather the suggestion that this assessment actually matters in the long run. Once the conflict ends, the metric is not a case-by-case determination about whether a particular prisoner could be dangerous. The Bergdahl controversy, however, suggests the degree to which the paradigm of future dangerousness has taken hold, supplanting the traditional rationale regarding the required release of wartime prisoners in the public discourse. This rationale supports more aggressive steps sooner and faster. Simply put, the US cannot, legally, anyway, hold Guantanamo detainees forever. So it might as well accept that reality sooner rather than later. Further, the longer it takes, the more credence it gives to the notion of the forever prisoner.

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law. He is the author of Habeas Corpus after 9/11: Confronting America’s New Global Detention System (NYU Press), and has represented several Guantanamo detainees.

Suggested citation: Jonathan Hafetz, What the Bowe Bergdahl-Taliban Exchange Teaches Us about Closing Guantanamo, JURIST – Forum, June 12, 2014, http://jurist.org/forum/jonathan-hafetz-bergdahl-taliban.php.