Bergdahl prisoner exchange: Weighing the blood on a terrorist’s hands

By Amos Guiora
June 5, 2014

amos -- top

President Barack Obama’s decision to release five detainees from Guantanamo in exchange for Sergeant Bowe Bergdahl has provoked much opposition and criticism. The military, however, has an over-arching obligation to ensure the safe return of all personnel.

The criticism about the “price paid” is misplaced. The only way to ensure Bergdahl’s safe return was to release some detainees. The crucial questions are: Who to release? What terrorist acts were they involved in? What potential danger do they pose moving forward?

It is clear is that the freeing of a soldier exacts a price. The point is: What price?

Determining the criteria for a Guantanamo detainee’s release is complicated and multi-faceted. It involves sophisticated geo-strategic considerations and gut-level emotion. This action not only effects national security and foreign policy; it involves releasing prisoners with “blood on their hands.”

amos -- freed terrorist How much blood is too much is difficult to quantify. Yet it is at the root of opposition to such exchanges.

I was involved in prisoner releases while serving in the Israel Defense Forces. The key dilemma was always determining who to release. There was inherent tension in the question because the decision, and discussion, was not unilateral.

Though Israeli authorities preferred to release prisoners who had minimal “blood on their hands,” Palestinian leaders usually insisted that any released prisoners had committed significant acts of terrorism.

Both Israeli and Palestinian leaders were playing to their respective publics. For Israelis, the release of “significant” terrorists revealed weakness and created the possibility of future acts of terrorism. For Palestinians, the return of prisoners with blood on their hand was symbolic of victory, justifying celebration. If Israelis released prisoners who had been convicted of common crimes — rather than acts of terrorism – it could mean cancellation of the deal.

Israel has indeed paid a high price for its soldiers. Consider the case of Simar Kuntar, whose actions are regarded as among the most heinous in Israeli history. A member of the Palestine Liberation Front, Kuntar was 16 when he took part in a 1979 beach raid on the Israeli town of Nihariya. He was part of a team that broke into a young family’s apartment, kidnapping the father and his 4-year-old daughter. He killed the father in front of young girl, and then allegedly smashed in the daughter’s skull. The mother, who had been hiding in a crawl space with her 1-year-old daughter, accidently smothered her baby in an attempt to stop her from whimpering.

amos -- kuntarIn prisoner exchanges over the years, the Palestinians regularly demanded Kuntar’s release, but the Israeli government always refused. They finally agreed in 2008, as part of an exchange for the bodies of two Israeli reservists.

When reviewing the acts committed by the convicted terrorists, there was a requirement for a “leap of faith” — that the planned release served larger, geo-strategic goals that justified freeing people who had committed significant acts of terrorism.

Under the Oslo Peace Process between Israel and the Palestinian Authority, confidence-building measures focused largely on release of Palestinian terrorists. The criteria for release were determined by different government agencies charged with striking a careful balance between enabling successful implementation of the release and minimizing public criticism and opposition.

There was, naturally, enormous tension and controversy. The prisoners most desired by the Palestinians were, in many cases, responsible for particularly horrifying acts that had resulted in significant loss of life. From the perspective of the Palestinian public, however, releases that did not include these prisoners were a failure — displaying weakness in the face of the Israeli occupier. If common criminals or perceived low-level terrorists were released, the disappointment, if not anger, amongst the Palestinian public was significant.

On the other hand, Israeli decision-makers were confronted with three distinct groups that voiced criticism: families whose loved ones had been killed by terrorists; right-wing groups who oppose any negotiation with terrorists; those concerned about the possibility of recidivism.

The first group’s opposition was understood and treated with sensitivity. The second and third groups, however, were perceived to represent a particular political agenda. Their petitions to the Israeli Supreme Court, sitting as the High Court of Justice, against the releases were dismissed on the basis that this decision is a political, not legal, question. Though the court dismissed the petitions, these voices were not muffled. In fact, the opposite is true.

amos -- israeli solderFrom a personal perspective, I understand the opposition voiced by families who were victims of terrorism. The arguments put forth by the other groups, however, often reflected a political agenda. That is not to deny recidivism amongst released terrorists can occur. But the possibility that a released terrorist may commit an act of terrorism should not outweigh larger geo-strategic considerations and calculations.

To minimize public opposition, some prisoner releases were conditioned on the signing of an affidavit foreswearing recidivism upon release. The enforceability of such affidavits was doubtful. But the decision to condition the release on the affidavit reflected sensitivity to public criticism rather than a legally binding document. For that reason, not all prisoner releases included the affidavit requirement.

The criteria discussion is often overshadowed by the inevitable “noise” that accompanies a release. For those involved, however, this is the essence of the process.

The crucial component of the prisoner releases I participated in was the assessment of whether each prisoner met the specific criteria. That is the critical question — not whether the president should have endeavored to secure the safety of Bergdahl.

 

PHOTO (TOP): Palestinians who were freed from Israeli jails as part of a prisoners exchange deal arrive at the Rafah crossing border in the Gaza Strip, October 18, 2011. REUTERS/Ahmed Jadallah

 PHOTO (INSERT 1): Wafa Al-Biss, a freed Palestinian prisoner, waves a Palestinian flag at her house as she is greeted upon her return in the northern Gaza Strip, October 19, 2011. Israeli soldier Gilad Shalit and hundreds of Palestinians crossed Israel’s borders in opposite directions on Tuesday in a thousand-for-one prisoner exchange REUTERS/Mohammed Salem

PHOTO (INSERT 2): Samir Kuntar after his release, visiting Shiraz, Iran. WIKIPEDIA/Commons

PHOTO (INSERT 3): Israeli soldier Gilad Shalit (C) is escorted by members of Hamas and Egyptian mediators on the Egyptian side of the Rafah border crossing, October 18, 2011. REUTERS/Hand Out/HAMAS

 

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Not sure I trust anyone who served in the IDF to have a grip on reality.

Posted by euro-yank | Report as abusive

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