Questions loom over Bergdahl-Taliban swap

“We saved an American and foreign policy gets criticized. We lose American lives on foreign soil, the president gets criticized. Are you seeing a theme here? It’s politics.”

Sen. Claire McCaskill, D-Mo.

A pall fell Monday over the celebration of Army Sgt. Bowe Bergdahl’s release from Taliban captivity as questions arose about how he became separated from his unit and the deal that led to his freedom.

The Pentagon has so far declined to say whether Bergdahl, who some accuse of desertion, may face disciplinary or legal action. Over the five years he was held, the U.S. government kept tabs on his whereabouts with spies, drones and satellites while negotiating off and on to get him back.

Bergdahl, released Saturday, was in stable condition Monday at a U.S. military hospital in Germany as criticism mounted over the way his freedom was secured: Five high-level members of the Taliban were released from the U.S. prison in Guantanamo Bay, Cuba, and sent to Qatar.

The five, who will have to stay in Qatar for a year before going back to Afghanistan, include former ministers in the Taliban government, commanders and a man who had direct ties to late al-Qaida chief Osama bin Laden.

A U.S. defense official familiar with efforts to free Bergdahl said the U.S. government had been working in recent months to split the Taliban network. Different U.S. agencies had floated several offers to the militants, and the Taliban leadership feared that underlings might cut a quick deal while they were working to free the five detainees at Guantanamo, said the official and a congressional aide, both of whom spoke only on condition of anonymity because they were not authorized to speak publicly about efforts to release Bergdahl.

“Knowing that various lines of effort were presented and still under consideration, none of which involved a disproportionate prisoner exchange, I am concerned by the sudden urgency behind the prisoner swap,” said Rep. Duncan Hunter, R-Calif., a member of the Armed Services Committee who has criticized the government effort to seek Bergdahl’s release as disorganized.

Republicans in Congress criticized the agreement and complained about not having been consulted by President Bararck Obama, citing a law that requires Congress to be given 30 days notice before a prisoner is released from Guantanamo.

Republicans on the House Armed Services Committee said the Pentagon notified the panel by phone on Saturday that the exchange was occurring in the next five hours.

“A phone call does not meet the legal standard of congressional notification,” the Republican members said in a statement and added that official notice of the move came Monday, “more than 72 hours after the detainees were released.”

Republicans also argued that the swap could set a dangerous precedent.

“The five terrorists released were the hardest of the hard-core,” said Sen. Lindsey Graham, a South Carolina Republican. “I fear President Obama’s decision will inevitably lead to more Americans being kidnapped and held hostage throughout the world.”

White House chief of staff Denis McDonough pushed back.

“All Americans should know that we did what was necessary to get Bowe back,” he said in a speech to a think tank. “We did not have 30 days to wait to get this done. And when you’re commander in chief, you have to act when there is an opportunity for action.”

Bergdahl disappeared on June 30, 2009. A Pentagon investigation concluded in 2010 that the evidence was “incontrovertible” that he walked away from his unit, said a former Pentagon official who has read it.

The military investigation was broader than a criminal inquiry, the official said, and it did not formally accuse Bergdahl of desertion. In interviews as part of the probe, members of his unit portrayed him as a naive, “delusional” person who thought he could help the Afghan people by leaving his army post, said the official, who was present for the interviews.

That official, like others cited in this report, spoke only on condition of anonymity because he was not authorized to comment publicly by name.

Nabi Jan Mhullhakhil, the provincial police chief of Paktika province in Afghanistan, where Bergdahl was stationed with his unit, said elders in the area told him Bergdahl “came out from the U.S. base … without a gun and was outside the base when he was arrested by the Taliban.”

After weeks of intensive searching, the military decided against making an extraordinary effort to rescue him, especially after it became clear he was being held in Pakistan under the supervision of the Haqqani network, a Taliban ally with links to Pakistani’s intelligence service.

Nonetheless, individual units pursued leads as they came in. The Pentagon official familiar with the talks said, “I know for a fact that we lost soldiers looking for him.”

But the Pentagon maintained the circumstances of his capture were irrelevant.

“He is an American soldier,” Rear Adm. John Kirby said. “It doesn’t matter how he was taken captive. It doesn’t matter under what circumstances he left. … We have an obligation to recover all of those who are missing in action.”

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The prisoner swap idea had evolved since early 2011, according to a former senior administration official familiar with the details. The official, who spoke on condition of anonymity because he was not authorized to discuss details of the negotiations, said an exchange was one of three confidence-building measures designed to facilitate direct peace talks between the Afghan government and the Taliban.

In the end, though, the Afghan government was kept in the dark about the deal, engineered by the emir of Qatar. In Kabul Monday, the Afghan Foreign Ministry criticized the swap, saying, “No state can transfer another country’s citizen to a third country and put restriction on their freedom.”

Congress was consulted in December 2011 and early 2012, one official said. Several members of Congress opposed any release, and lawmakers erected several legal hurdles.

Recently, though, Congress eased the restrictions on releasing Guantanamo detainees, including the toughest one: requiring the secretary of defense to personally guarantee there would be no return to terrorism for any detainee he certified.

The Taliban demanded the release of these specific commanders, the former official said. Initially, the U.S. wanted to release them in batches, to ensure that Qatar could hold up its end of the bargain. But that didn’t happen: The U.S. freed the five all at once.