Policy Switch?

06.02.14

White House Changes Tune on Bergdahl, Says He Was a ‘Prisoner of War’

For years, the Obama administration avoided calling Sgt. Bowe Bergdahl a POW. But now that he’s free, it has reversed course—potentially triggering Taliban demands.

Since the Saturday release of Sgt. Bowe Bergdahl, several senior Obama administration officials have called him a “prisoner of war.” But for the five years of his imprisonment, the policy was never to use that term for the missing soldier, and now experts are worrying that the Taliban will start calling its captured soldiers “prisoners of war,” too.

Following President Obama’s Rose Garden ceremony Saturday with Bergdahl’s parents, senior administration officials have repeatedly praised Bergdahl as a hero and applauded his conduct, pushing back against reports he intentionally deserted his post in Afghanistan. National Security Adviser Susan Rice said Sunday that Bergdahl served with “honor and distinction.” Rice and other top officials also began calling Bergdahl a “prisoner of war.”

“Sergeant Bergdahl wasn’t simply a hostage, he was an American prisoner of war captured on the battlefield,” Rice said.

“Sgt. Bergdahl is a sergeant in the United States Army. He was a prisoner of war,” Defense Secretary Chuck Hagel said Sunday. “This was an exchange of prisoners…Again, I remind you this was a prisoner of war exchange.”

During the five years of Bergdahl’s imprisonment, despite discussing his case in several public briefings, State Department and Defense Department officials made sure not to refer to Bergdahl as a “prisoner of war.” The reason, according to a senior administration official at the time, was that U.S. policy dictated that the rules of treatment for “prisoners of war” under the Geneva Convention did not apply to the conflict with al Qaeda and the Taliban. There was concern that if the U.S. called Bergdahl a “prisoner of war,” the Taliban would say its soldiers in U.S. custody were “prisoners of war,” as well, and would demand Geneva protections.

Some experts said the Obama administration’s sudden use of the term “prisoner of war” for Bergdahl has greater implications for U.S. policy on the treatment of detainees, especially the Taliban.

“It rips open an issue that we’ve put aside for 10 years, which is that some of the people we have imprisoned could be entitled to some Geneva protections,” said Eugene Fidell, a professor of military law at Yale University. “The Obama campaign was critical of the Bush administration going in, but the actual changes in how the Obama treated these guys as opposed to the Bush administration are few.”

The Bush administration decided in 2001 to classify militants captured on the battlefield as “enemy combatants” who were not entitled to protections and privileges afforded to “prisoners of war” under the Geneva Conventions, which the U.S. has signed but the Taliban has not. That allowed the Bush administration to create the prison at Guantanamo Bay and various other prisons around the world, and keep the prisoners out of the eye of international observers.

“It rips open an issue that we’ve put aside for 10 years, which is that some of the people we have imprisoned could be entitled to some Geneva protections.”

“One of the interesting issues of Article 4 of the Geneva Convention deals with if you were to deem somebody as a prisoner of war, the United States government would be obligated to pay them a monthly stipend,” said White House press secretary Ari Fleischer in February 2002. “The United States government would be obligated to give the al Qaeda or the Taliban detainees, the al Qaeda terrorists in Guantanamo musical instruments. Those would be obligations imposed upon a government under the prisoner of war aspect of Article 4 of the Geneva Convention.”

The Obama administration continued the policy of not giving the Taliban or al Qaeda detainees Geneva Convention “prisoner of war” protections, and when Bergdahl was captured in 2009, it was careful not to use the term “prisoner of war” to refer to Bergdahl.

In 2013, when asked if the Taliban at Guantanamo Bay were “prisoners of war,” State Department spokeswoman Jen Psaki refused to answer. “I think that’s a pretty broad question, so…I just don’t have anything for you on that,” she said.

At Monday’s press briefing, Psaki called Bergdahl a “prisoner of war” for the first time but said the captured Taliban were not.

Ken Gude, a senior fellow at the Center for American Progress, said there’s no conflict between calling Bergdahl a “prisoner of war” and maintaining that prisoners at Guantanamo Bay are not. U.S. soldiers qualify for Geneva protections, he said, because they meet the criteria of a “prisoner of war”: They wear uniforms, are clearly marked as combatants, and are part of an army that follows the laws of war. Members of the Taliban meet more of those criteria than others imprisoned at Guantanamo but not all, he said.

The administration scrambled Sunday and Monday to defend its decision to swap Bergdahl, the only U.S. soldier held by the Taliban, for five top Taliban commanders imprisoned at Guantanamo Bay, Cuba. The circumstances of his capture were the focus of several reports from members of the military, who say Bergdahl intentionally left his post without permission. The Defense Department investigated Bergdahl’s actions, but the file remains classified.

“Sgt. Bergdahl was a combatant who was detained in the course of an armed conflict.  His status as a detained combatant, or prisoner, is distinct from someone who, for example, may be a civilian hostage,” a senior White House official told The Daily Beast on Monday. “The references to ‘prisoner of war’ were made in that context.”

In the end, Bergdahl is a “prisoner of war,” and the circumstances of his capture aren’t relevant to how necessary it was to free him, Pentagon spokesman Adm. John Kirby told The Daily Beast on Monday.

“I was in the Navy, and the ethos was, if a man goes overboard, it doesn’t matter if he jumped, fell, or got pushed. We were going in to get him,” said Kirby. “He was a prisoner of war, and prisoner exchanges in a time of war have a deep historical context, and we’re comfortable that using diplomatic means to make the exchange was the right approach.”