An important moment in Power Wars is the May 2014 prisoner exchange deal in which the United States sent five high-level Taliban detainees to live under monitoring and travel restrictions in Qatar to secure the release of Sgt. Bowe Bergdahl, America’s only prisoner of war in Afghanistan, who had been held in horrific conditions by Islamist insurgents for five years. I cover it in Chapter 10, Section 15: “Violating the Transfer Restrictions to Save Bergdahl,” page 519-523.
Today, coincidentally, separate tranches of new information have become available each half of the deal from this complex episode.
This morning, the podcast “Serial,” by the “This American Life” people, posted the first episode of their second season, which turns out to be about the Bergdahl case. It is centered around 25 hours of interviews between Bergdahl and Mark Boal, who is best known as the screenwriter of “Zero Dark Thirty” and “The Hurt Locker.” In this first episode, Bergdahl describes a bit of what it was like to be held in Taliban custody – including a grim bit about how his mind was breaking down during a period when he was held in continual complete darkness – and talks about his motivations in walking away from his base without permission: what he was thinking when he decided to do it (he says he was trying to draw attention to problems in his unit, a story that the investigating general concluded was truthful but delusional), and what he was thinking as he got away from the base and realized he was in over his head, and how he ended up getting captured. I strongly recommend listening to it – fascinating stuff.
Separately, the Republican staff on the Housed Armed Services Committee have released a roughly 100-page report detailing their oversight investigation into the circumstances of the Taliban 5 transfer. I obtained an advance copy and wrote an article describing it – and Democrats’ rebuttal – that the New York Times published last night. (The report cites Power Wars several times.)
The report is valuable for two reasons. First, it provides a rebuttal to the administration’s arguments that the 30-day notice provision of the transfer restrictions was unconstitutional, at least as applied. The executive branch spelled out that argument in a back-and-forth with the GAO last year (I earlier posted those documents on this blog) and the GAO did not engage with it, so it has stood uncontested in any formal way. Now the public can view an articulation of the arguments from both points of view.
Second, it discloses many new historical details about what the administration was doing during in the six months leading up to the swap, as then-DOD general counsel Stephen Preston picked up on what his predecessor, Jeh Johnson, had explored with the Qataris and eventually pushed the deal through to completion. At the time, the administration was pretending, both to reporters and to Congress, that nothing significant had changed about the prospect of such a trade, which had floated in on-again, off-again talks for several years. It quotes from many internal emails and closed-door testimony about how the talks progressed and unusual bureaucratic maneuvers in preparing for the transfer, which adds a lot to the publicly available history of how this episode unfolded. Here are some excerpts that jumped out at me:
- Preston, who was confirmed as DOD general counsel in October 2013, went to Qatar in December 2013 with then-Secretary Chuck Hagel and, among other things, met with the Qatari attorney general where they discussed reviving the lapsed idea of sending the Taliban Five to Qatar in exchange for Bergdahl, and what security conditions Qatar would impose. Preston wrote in an email back to colleagues: “Our meeting with the AG earlier today went reasonably well. . . . there were no disagreements, and we achieved our immediate objectives: signaling to the third party [the Taliban] our interest in pursuing this matter and confirming the host government’s [Qatar’s] willingness to commit to the previously negotiated terms and assurances, subject to further discussions with the third party.”
- On the US’s behalf, the Qataris asked the Taliban for a “proof of life video” of Bergdahl, which arrives in January.
- “Between January 10 and February 11, 20114, Cabinet secretaries from involved agencies meet at least once in a “Principals Committee” and the second- in-command for each gather one or more times in interagency “Deputies Committee” to discuss the MOU and swap.”
- The press was reporting rumors that a Bergdahl-Taliban swap was in the air again. The White House demurred, stating (accurately, but misleadingly) that there were no “direct” talks with the Taliban. Similarly, when congressional staff reach out to the Pentagon, they are left with the misimpression that nothing new of significance was happening.
- The US was talking to the Qataris, and the Qataris were talking to the Taliban, but on Feb. 23, the Taliban told the Qataris they weren’t interested for murky reasons.
- By April 10, 2014, Preston was back in Doha to try again. Sticking points included whether the security arrangements (surveillance of their phone calls, a ban on letting the Taliban Five travel abroad or engage in raising funds for the Taliban or encouraging militant activity) would last only a year, and whether the Qataris could extend that time when the year was up. (This is what has happened.)
- When Preston thought they might be on the verge of a deal on May 2, 2014, he wrote this in an email to colleagues back in Washington, referring to the Office of Secretary of Defense (OSD), the secretary’s staff (the secretary of defense “front office” or “SD/FO”), the relevant congressional committees (“overseers”), the Afghans (“As”), and the forthcoming prisoner exchange (the “next phase”): “There is great concern all around about possible leaks—not from OSD, I might add—as this phase of the discussion ends and we seek to proceed expeditiously with the next phase. (This concern is exacerbated by the prospect of notification to our overseers and/or the As.) There is some thought being given to necking down the group in on development going forward. Please act accordingly. I have informed SD/FO.”
- “The Qataris, too, emphasized secrecy. On May 5, the State Department forwarded to Mr.
Preston the text of a message received from a Qatari interlocutor: ‘As we agreed, it is very important to keep this agreement secret and on a need to know base [sic] only. To be more clear: for the sake of the success of the deal, this secrecy should continue up to the time of the actual transfer. At that time we can agree on the proper way to deal with the media.'”
- On May 6, 2014, Preston sought guidance from the Justice Department’s Office of Legal Counsel on “whether proceeding with the transfer of detainees without 30-days’ notice to Congress might be lawful given the extraordinary circumstances at issue here—in which providing 30-days’ notice would put into peril the life of a service member in captivity.” Shortly thereafter, DOJ said the president’s constitutional authority would permit the transfer to proceed without the notice.
- On May 11, the Qataris relayed a request from the Taliban to add a sixth detainee to the deal, which the Obama administration rebuffed. (The original talks in 2011 had contemplated six, but one of them had since died of a heart attack at Gitmo.)
- “On May 12, the Qatari attorney general and three other Qatari officials attended the MOU [memorandum of understanding about surveillance and travel restrictions for the Taliban Five] signing ceremony. It was held in the ornate Indian Treaty Room in the Eisenhower Executive Office Building adjacent to the White House. Mr. Preston (who affixed his name on behalf of the Department of Defense), Mr. Dumont, Navy Admiral James A. “Sandy” Winnefeld, Jr. (the Vice Chairman of the Joint Chiefs of Staff), two National Security Council staffers, and a State
Department official attended.86 Afterwards, the entire party dined at the nearby Metropolitan Club.”
- On May 14 there was another deputies committee meeting about the matter.
- “In this period [around the time of the deputies committee meeting], the American negotiators also learned from the Qataris their impression that Sgt. Bergdahl’s health was declining, that the Taliban’s interest in keeping Sgt. Bergdahl alive was diminishing, or the captors’ enthusiasm for a swap was waning. “Time is not on your side,” Mr. Dumont said the Qataris had reported to the U.S. Later, Mr. Dumont said the Qatari attorney general told him, “If this [the pending exchange] leaks out, we cannot guarantee what will happen to Sergeant Bergdahl. . . if this gets out that you’re trying to do this transfer [then] . . . the wheels come off.”
- On May 27, Preston wrote to his office from Qatar, “As this matter moves to the next phase, I want to stress the importance of maintaining strict secrecy. Premature exposure could have catastrophic consequences,” he wrote. “Please be careful about what you say and to whom.”
- Hours later on May 27, Preston wrote back that the deal was done: “We have a deal. Agreement on structure of exchange, details of sequence of steps—open issues resolved—literally shook on it. Execution is already underway. Current plan is to consummate the transaction this week.”
- Also on “May 27, Mr. Lumpkin spoke with General John F. Kelly, the commander of Southern Command, and directed him to prepare the Taliban Five to leave GTMO. General Kelly then telephoned Rear Admiral Richard Butler, who led JTF-GTMO. Two U.S. Air Force C-17s arrived at GTMO before the day was out. Thus started a complex series of choreographed events over the next four days, in which personnel at GTMO, Mr. Dumont in Qatar, and others elsewhere juggled many logistical issues. They worked to dispatch the Taliban Five to Qatar pursuant to the agreed upon arrangements and do so in a way which kept it from being publicly known. …The transfer process included Qatari representatives coming to GTMO to escort the detainees to Qatar. According to the GTMO commander, on May 29, the Qataris presented the Taliban Five with a statement which outlined their transfer terms.”
- “The Taliban Five were not to depart, however, until Sergeant Bowe Bergdahl had been returned to U.S. control. Originally, this was anticipated to occur shortly after the Qataris arrived at GTMO and had met with the detainees. However, as Michael Dumont (Deputy Assistant Secretary of Defense for Afghanistan, Pakistan and Central Asia) explained to the committee, “[i]t took the Taliban much longer to get Sgt. Bergdahl to us” than originally expected. Consequently, this delayed the departure of the Taliban Five. Eventually, after staging near the GTMO runway for about eight hours, it became clear that the transfer would not occur by the end of May 29. Accordingly, the Qatari delegation was provided with a room in the military hotel adjacent to the GTMO runway. The Taliban Five spent the night in a secure facility at GTMO normally used by the Department of Homeland Security in connection with regional immigration enforcement activities. The following day, the operation to recover Sgt. Bergdahl continued to drag out, further stalling the transfer.
This additional delay meant the Qatari delegation and the Taliban Five were accommodated for a second night in the same way. … The call for mission “GO” came Saturday morning, May 31, 2014. The Taliban Five were bused from their cells to the waiting aircraft. Less than 3 hours after Sgt. Bergdahl was released into U.S. custody, the detainees were escorted onto the aircraft and flown to Qatar, along with the Qatari escorts.”
- The chairman of the House Armed Services Committee at the time, Rep. Howard “Buck” McKeon, was told by the Pentagon that Bergdahl had been recovered and the Taliban Five were about to be flown out of Gitmo shortly before the plan took off.
- Detainee policy officials who work on normal transfers of lower-level detainees who are recommended for release, like Paul Lewis, who became the Department of Defense’s Special Envoy for Guantanamo Detention Closure in October 2013, had little involvement. The undersecretary of defense for intelligence, Michael Vickers, was not told what was going on: “Indeed, in the months leading up to the transfer, Mr. Vickers was not aware of or invited to any interagency meetings on the subject. ‘I didn’t participate in any [meetings] and nobody told me about them,’ he reported to the Committee. Mr. Vickers found out about the transfer the day before it occurred. He did not see the Memorandum of Understanding until after the transfer had taken place. Mr. Vickers said he was surprised he had been excluded from these matters because he said he was ‘generally’ apprised of ‘most policy matters’ and ‘anything operational’ in the Department.”