By Clive Stafford Smith, Al Jazeera America

03 June 14


ontroversy has arisen over the U.S. government deal that released five Taliban prisoners held for years in Guantánamo Bay in exchange for Sgt. Bowe Bergdahl, an American soldier captured and held in Afghanistan since June 2009. Critics have called the decision hypocritical.

There is a case that can be made for the allegation. The five Taliban were arguably among those who had actually committed crimes, if fighting foreign troops who invaded their country could be deemed an offense. At the very least, they had taken part in hostilities and might, originally, have been legitimately detained as bona fide prisoners of war — a position that would be more defensible if only the U.S. respected the Geneva Conventions.

Compare those five men to the 78 detainees remaining in Guantánamo Bay who have been held there for 12 years or more and yet have been cleared for release for half that time. With the Taliban five headed for freedom, the cleared prisoners now make up more than 52 percent of the 149 detainees left there. Has there ever existed another prison where more than half the prisoners were told they had been cleared to leave but they could not go?

So, yes, it is certainly ironic that those who were purportedly guilty should be liberated while the patently innocent should remain.

Rep. Mike Rogers, the Republican chairman of the House Intelligence Committee, used a stronger word than hypocrisy. He effectively labeled members of Barack Obama’s administration criminals: “I think they violated the law in two different places.” Rogers and other Republicans think Obama’s unwise action has made America a more dangerous place.

The question must be asked, though: Who is the fool, and who is the hypocrite?

The fool was the one who opened Guantánamo. A CIA agent said — 10 years ago now — that for every detainee held without trial in this notorious base, we had provoked 10 others to wish America harm. If asked today, he would probably revise his estimate up a hundredfold. Although the day after 9/11, the U.S. had the sympathy of the world, the experiments of the George W. Bush administration with rendition, torture, Abu Ghraib and Guantánamo Bay drained all that goodwill away. Such policies have made the world a far more fractured and hate-filled place.

And who is the hypocrite? Under Bush, several hundred detainees were sent home. Among these, a number had pleaded guilty to war crimes, albeit in the discredited Guantánamo Military Commission. After Salim Hamdan pleaded guilty to being Osama bin Laden’s driver, he was repatriated to Yemen. The majority of the innocent prisoners who remain are Yemeni, because the Republicans later designated the country as too dangerous to repatriate them to. Ibrahim al-Qosi pleaded guilty to being bin Laden’s cook; the Republican president sent him home to Sudan, a country that the U.S. insisted was being run by an international war criminal who had committed genocide in Darfur.

My Guantánamo client, the British resident Shaker Aamer, laughingly suggested that he and the scores of other cleared prisoners should plead guilty to being some random employee of bin Laden’s (his butcher, his baker, his candlestick maker), since that appeared to be the only way they could escape detention without charge or trial.

So if the Republicans believe that Obama is a hypocrite or a criminal, what do they think of his predecessor in office?

In truth, Obama did the right thing. For America, the war in Afghanistan is over. Not only was he entitled to set the five Taliban free, but he was also legally obliged to do so — just as, thankfully, the Taliban released Bergdahl, whether they recognized the law as compelling their actions or not. It is not compliance with the law that provokes hatred but the hypocritical pretense that one’s side is the sole purveyor of justice and the rule of law. It was also Obama’s duty to Bergdahl to get him home after several years of misery that may presumably be compared to the ugly plight of detainees in Guantánamo.

Obama is committed to reversing the mistake that gave us Guantánamo in the first place. Of course, he has been much too slow to fulfill his 2009 promise, but from my experience with the prison, I can attest that his staff is now working hard toward that goal — albeit in the face of hypocritical and unwise obstruction by congressional Republicans.

Editor’s note: A previous version of this article mistakenly claimed that Australian detainee David Hicks pled guilty to a terrorism charge. Hicks entered an Alford plea, by which he admitted no guilt for what he was alleged to have done.