The President struck a deal to get an American soldier held by the Taliban in Afghanistan back and the world went crazy. By the world, I really mean tv pundits and Republicans who knee-jerk oppose anything and everything this President does. People who just weeks ago were criticizing him for not getting Bowe Bergdahl back were all of a sudden incensed that he struck a deal with the Taliban to do just that. (And don't even get me started on Andrew Napolitano's ridiculous "he could be charge with giving aid to terrorists for releasing these guys" nonsense.) It's been fascinating to watch from a political standpoint.
But there's a really important legal, criminal defense even, point that must be emphasized. What we should learn from the Bergdahl incident is this: Gitmo is now and has always been a terrible, horrible, no good, very bad idea and we have got to end it. We are running out of time to find a graceful way to end it and denial about the need to end it isn't helping.
For centuries, the world has recognized certain rules about how to handle captured enemy soldiers during war. Countries were allowed to keep those soldiers, rather than release them so they could wind up back on a battlefield killing again, but within accepted parameters. And when the war was over, everybody sent the captured soldiers back home. The more amorphous war on terror, where we weren't really fighting a defined foreign power made things a tad more complicated. We weren't at war with Afghanistan itself, just the nasty elements that were allowed to grow in the more lawless regions of that country.
When the prison/detention camp thingy in Cuba was first created, it was a creative extension of normal international prisoner of war standards. We called the Taliban and Al Qaeda fighters we captured "enemy combatants" so we could detain them under international prisoner of war standards rather than trying to put them all through criminal court. It was definitely uncharted territory, which made it so tricky.
But that was over a decade ago. At some point, we had to know we couldn't just hold these guys for the rest of their lives. Some who had provable ties to actual terrorist acts, like Khalid Sheikh Muhammad, we could try in criminal court, where presumably they will be convicted and we can then hold them forever. Because due process and international law both allow people convicted of murder in criminal court to be incarcerated for life. Combatants captured on a battlefield, not so much. We were never going to be able to make criminal charges stick against most of them, the vast majority of them, even. At some point, we were always going to have to start sending them home, even the really bad, high-ranking Taliban guys. It doesn't matter how much they hate us or how much harm they might hope to do to us. The French and the British didn't stop hating each other the moment a war ended, but they still sent each other's men home. Even if that meant they'd face off in battle again some day. We just don't get to keep them forever.
So since we have to accept that reality that eventually we will have to close Gitmo and release most of its inmates, we might as well get something for them when we can.
In the wake of the Bergdahl swap, it would be nice if we could have a serious discussion, then, about what we are going to do with all the rest of them. When and how will we release them (there is no "whether"), to which nations, and with what, if any, conditions. It would be lovely if we could calmly and rationally face this reality head on, if we could think about what other things we might negotiate about as we release more detainees. Instead of speciously whining that we made America less safe on behalf of the son of a man who looks too Muslim.