What We Should Really Be Talking About With the Bowe Bergdahl Controversy

After many months in the media doldrums, Guantánamo Bay is back in the news, but not for good reasons. President Obama is facing criticism for a prisoner swap, in which five Taliban prisoners in Guantánamo were released to secure the release of Bowe Bergdahl, the sole U.S. prisoner of war in Afghanistan, who has been held for the last five years. 

Image Credit: AP. A shot from a video released by the Taliban showing the handover of Bowe Bergdahl. 

This criticism is neither accurate nor helpful, and, in addition, it does not take into account the prisoners still held at Guantánamo: Specifically the 78 men, out of 149 remaining prisoners, who have been cleared for release from the prison, mostly since 2010. The five released men were recommended for continued detention in January 2010 by the high-level, inter-agency Guantánamo Review Task Force (and were then determined to be eligible for a Periodic Review Board in April 2013 to ascertain if their ongoing detention was still regarded as necessary).

For these 78 men, the release of the five Taliban prisoners is unlikely to cause anything but despair. Seventy-five of them had their releases approved by the Guantánamo Review Task Force, yet are still held. That's because Congress has raised obstacles to the release of prisoners since 2010, which President Obama has refused to override, even though a waiver in the legislation allows him do so. Three others were cleared for release after undergoing the Periodic Review Board process, established to review the cases of most of the prisoners who have not been cleared for release.

Image Credit: AP. Yemeni children hold up photos of their uncle, currently held in Guantánamo.

Last May, in response to a prison-wide hunger strike, President Obama promised to resume releasing prisoners from Guantánamo. In December, lawmakers were persuaded to ease their restrictions on the release of prisoners, but prior to the prisoner swap, only 12 men were released. 

Of the 78 others, 58 are Yemenis, whose release seems to be permanently on hold because of U.S. fears about the security situation in Yemen. These fears may be legitimate, but they are an unacceptable reason for continuing to hold, year after year, men that high-level reviews said should no longer be held. 

The other 20 men include some who cannot be safely repatriated (like the four Syrians, the Palestinian and the Tunisian that President Mujica of Uruguay has recently offered to accept); Shaker Aamer, the last British resident in the prison, who is inexplicably still held despite having been cleared for release under former President George W. Bush and President Obama; and four Afghans.

Image Credit: AP. Undated photo of Shaker Aamer with his two daughters. 

All these men have reason to believe that they are too insignificant to be part of any prisoner swap, but the Afghans in particular are probably deeply feeling that at present. Briefly, the four men are: Shawali Khan, a shopkeeper, who seems to have been falsely portrayed as an insurgent by an informant who received payment for doing so; Khi Ali Gul, a pro-U.S. soldier who had worked with U.S. forces but was the victim of lies by a rival; Mohammed Zahir, a teacher, who was set up by Taliban sympathizers; and Abdul Ghani, a poor villager who scavenged for scrap metal, who was mistakenly portrayed as an insurgent. 

In addition, although eight other Afghans are still held who have not been cleared for release, some if not most of whom are also so evidently insignificant that their continued detention is unjustifiable. For further information, see "U.S. in Talks to Return the 17 Afghan Prisoners in Guantánamo," my article from July 2012, when it was first mooted that all the Afghan prisoners might be released.

In general, however, Guantánamo prisoners have known since 2007 that being regarded as somehow "significant" often provides the best opportunity for being released. That year, David Hicks, an Australian, agreed to a plea deal at his trial by military commission and was soon sent home. Since then, convictions or plea deals leading to the release of prisoners have also been reached in other military commission trials, leading to the release of Salim Hamdan, a driver for Osama bin Laden, in November 2008, and the release of two Sudanese men, Ibrahim al-Qosi and Noor Uthman Muhammed, in July 2012 and December 2013.

Image Credit: AP. Noor Othman Mohammed is greeted by family members upon his arrival in Khartoum, Sudan's capital.

As the storm over the prisoner swap rages on and, no doubt, eventually subsides, who will remember the cleared prisoners at Guantánamo and call for their release?