On May 31, 2014, President Barack Obama announced that after being held in captivity in Afghanistan for nearly five years, Sergeant Bowe Bergdahl would return home. (1) Obama outlined the prisoner-exchange agreement that led to Bergdahl's release:
I'm also grateful for the tireless work of our diplomats, and for the cooperation of the government of Qatar in helping to secure Bowe's release. We've worked for several years to achieve this goal, and earlier this week I was able to personally thank the Emir of Qatar for his leadership in helping us get it done. As part of this effort, the United States is transferring five detainees from the prison in Guantanamo Bay to Qatar. The Qatari government has given us assurances that it will put in place measures to protect our national security. (2) Describing the actual exchange, U.S. Secretary of Defense Chuck Hagel stated: "Fortunately, ... no shots were fired. There was no violence. It went as well as we not only had expected and planned, but I think as well as it could have." (3)
Shortly after the president's announcement, questions arose about the original circumstances under which Bergdahl had been captured. Platoon members alleged that Bergdahl had voluntarily left his post because he was disillusioned with the Army and the war in Afghanistan. (4) Implicitly responding to these critiques, the chairman of the Joint Chiefs of Staff emphasized the military's ethos of "never leaving a fallen comrade behind" and noted that "[i]f there is wrongdoing, [Bergdahl] will be held accountable, and in the meantime, he is innocent until proven guilty." (5)
In the days that followed, more information became available about the Taliban detainees who were released from detention at Guantanamo Bay in exchange for Bergdahl. According to press reports, senior administration officials confirmed the names of the five Taliban detainees: Khair Ulla Said Wali Khairkhwa, Mullah Mohammad Fazl, Mullah Norullah Noori, Abdul Haq Wasiq, and Mohammad Nabi Omari. (6) Prior to their capture, each of the detainees had held a senior role within the Taliban. (7) A U.S. Department of State spokesperson described their status at Guantanamo as follows:
All of these five were eligible for review by the Periodic Review Board of Guantanamo Bay. So there are three buckets of people in Guantanamo that remain. There are those who are approved for transfer. That's 78. There are about 30 who have been referred for prosecution in some way. These five are in that middle bucket and were unlikely--might have been, but unlikely--to be added to the group that was going to be referred for prosecution. So it is quite likely that eventually, in line with our commitment to close Guantanamo Bay, they would be transferred. (8) The following day, the spokesperson elaborated: "[L]ook, these were not good guys. I am in no way defending these men. But being mid- to high-level officials in a regime that's grotesque and horrific also doesn't mean they themselves directly pose a threat to the United States." (9)
New details also emerged about the assurances the Qatari government provided before the release of the five detainees:
[W]e demanded a complete travel ban; we demanded certain security measures be put in place to substantially mitigate the threat that these individuals may pose to the U.S. and our interests. Those demands were met prior to doing this. Those demands were important to us. We wanted to make sure we negotiated for them. ... [They are not] under house arrest. It's possible someone will see them on the streets of Qatar. But those types of activities don't threaten our national security interests, and that's the standard here about substantially mitigating the threat that they will pose. We're confident in the Qataris that the restrictions agreed upon, and these individuals will be restricted from activities that pose a threat to our national security. (10) These restrictions on the detainees are to be in place for one year. (11) According to the White House, "[T]he assurances were sufficient to allow the Secretary of Defense, Chuck Hagel, in coordination with the national security team, to determine that the threat posed by the detainees to the United States would be sufficiently mitigated and that the transfer was in the U.S. national security interest." (12)
A federal statute regulates the release of detainees from Guantanamo. In particular, section 1035(b) of the 2014 National Defense Authorization Act (NDAA) authorizes the secretary of defense to release such...