The Cable

The Best Defense of Obama's Prisoner Swap That You've Never Heard

In the last week, the Obama administration has rolled out a laundry list of reasons to justify swapping five senior Taliban officials for Sgt. Bowe Bergdahl, the only American prisoner of war in Afghanistan. None of the arguments are proving very persuasive with the public: 43 percent of Americans say Obama made a mistake in releasing the militants in exchange for Bergdahl, compared with 34 percent who support the decision, according to a new USA Today poll.

But the best defense of the president's prisoner swap is one you've probably never heard. That's because the administration isn't bandying it about in public. Instead, the White House is sharing it privately with the members of Congress invited to classified, closed-door briefings on the case.

It goes like this: Under the laws of war, the legal authority to detain unarmed forces ends when the conflict ends. Last month, President Obama announced that the United States will cease all combat operations in Afghanistan by the end of 2014. At that time, Washington will theoretically lose the legal standing to continue to detain Taliban officials who have not been convicted of a crime. Therefore, it makes sense to give up five Taliban prisoners in exchange for an American POW now rather than releasing those same militants in December without getting anything in return.

"I don't know why the White House wasn't making this argument a week ago," said Ben Wittes, a senior fellow at the Brookings Institution and editor of the "Lawfare" blog. A number of Democratic lawmakers espoused that legal view after a briefing with White House officials on Monday. 

"When the war is over, we would've had to release them anyway," Rep. Jerrold Nadler (D-N.Y.) said late Monday night after leaving a classified briefing with top administration and intelligence officials. "I would've been upset if the president hadn't made the call."

Democratic Rep. Zoe Lofgren of California agreed. "Since international law allows you to hold enemy combatants during a time of war, when the war's over, you can't keep them," she said. "It may be the issue is whether we're releasing him in May to get our soldier back or in December and not get our soldier back."

The White House did not respond directly to a question about why it hasn't been pushing this explanation more forcefully in public. However, National Security Council spokesperson Caitlin Hayden confirmed that the administration believed it would lose some legal authority to detain Taliban militants when the U.S. combat role in Afghanistan ends.

"The United States continues to have the authority under both domestic and international law to detain individuals who are part of al Qaeda, the Taliban, and associated forces so long as we are in an armed conflict with those groups," she said. "When the armed conflict with the Taliban ends detention would likely no longer be authorized for individuals detained purely on the basis of their status as Taliban members."

Hayden's remarks do leave a potential loophole. Washington plans to leave 9,800 troops in Afghanistan through the end of 2015 to train and advise Afghan security forces and conduct counterterrorism operations. Wittes, the Brookings fellow, says the White House could argue that it still had forces undertaking missions against Taliban targets, which would mean its authority to hold onto militants from the group wouldn't necessarily lapse. Those residual forces are scheduled to leave Afghanistan after a year, however, so that legal justification would disappear by the start of 2016 anyway.

Another caveat, Wittes said, is the widely recognized ability for countries to have "wind-up detention authority," a fancy way of saying that the administration could have a window to gradually release detainees, rather than simply letting all of them walk out the door immediately.

"It's not like you snap your fingers and all of a sudden you have to open the prison gates," said Wittes. "There's some time you have to wind down." 

Hayden confirmed that the White House believes it has this authority. "The executive would ... have a limited 'wind up' authority to ensure the safe and orderly transfer of any detainees subject to repatriation or resettlement," she said. However, even by her admission, that authority would be "limited."

Although it's unclear why the administration isn't pushing this line more forcefully, it may be reluctant to box itself in legally on the occasion that it does try to retain Taliban officials beyond 2014. But that's just a guess. In any event, with the polls beginning to turn against the White House, it may want to reconsider making the case. "Ultimately, if you're serious about ending the war, one consequence of that is you're going to free Taliban prisoners," said Wittes.

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The Cable

It Gets Worse: Latest Bad News for VA Shows Scandal Nowhere Near Over

The controversy over the Sgt. Bowe Bergdahl-Taliban prisoner swap may have knocked the Veterans Affairs Department scandal off the front pages, but a new report issued Monday revealing that more than 100,000 veterans waited excessively for health care put it back in the spotlight -- where it is likely to stay for some time.

It also makes finding a top-notch replacement for former VA Secretary Eric Shinseki more critical and difficult. Few wanted the job after the first wave of bad news. The report, coupled with the withdrawal of Toby Cosgrove, head of the Cleveland Clinic and considered a front-runner to replace Shinseki, from consideration amid revelations that the Cleveland Clinic had similar problems of its own, could make it impossible.

The search for Shinseki's successor is another source of embarrassment for President Barack Obama as Cosgrove's withdrawal has critics and veterans questioning the administration's vetting process.

Obama "will need to address the apparent and embarrassing incompetence of his staff regarding its inability to properly vet candidates in [a] timely manner," Benjamin Krause wrote in a blog post on the DisabledVeterans.org website on Monday, June 9. "The second, and most difficult, is that he will need to address the fact that being an executive at VA is a very unpopular career choice in the middle of a major scandal."

No one expected good news from the internal VA audit unveiled Monday, least of all members of Congress.

Even before the audit was released, the House Veterans' Affairs Committee announced it was holding an oversight hearing Monday evening, with an unusual 7:30 p.m. start time, demonstrating how miffed lawmakers are. And also ahead of the report, the House leadership scheduled a Monday evening vote for one of myriad VA reform bills to spring up since news of blatant fraud and dysfunction at a VA facility in Arizona surfaced two months ago.

The House didn't limit is reaction to one day. On Tuesday, it passed a just-introduced bill from House Veterans' Affairs Committee Chairman Jeff Miller (R-Fla.) directing the VA secretary to go outside the system to alleviate the appointments backlog.

Monday evening, the House approved a measure sponsored by Rep. Dan Benishek (R-Mich.) that would require the VA's inspector general (IG) to determine whether the VA has appropriately responded to complaints in IG reports related to "VA public health or safety" and reduce the burden on supervisors when it is necessary to fire bad employees. 

Miller's reaction to the audit Monday also showed his support for Benishek's bill.

"The only way to rid the department of this widespread dishonesty and duplicity is to pull it out by the roots," Miller stated. He urged the Senate to take up another House-passed bill that would authorize the VA secretary to immediately fire failing executives, such as supervisors who ordered subordinates to fudge waiting-list data to conceal the wait time for patients who scheduled an appointment.

Democratic Sen. Ron Wyden also called for a new wave of firings as many of the violations occurred in his home state of Oregon. "Those who cooked the books at VA facilities or lied to Congress as it attempted to conduct oversight should be fired immediately and prosecuted to the fullest extent of the law," he said.

According to the audit, more than 100,000 veterans experienced long waiting times for medical appointments at facilities around the country, and an additional 64,000 who signed up for VA health care in the last 10 years have never had appointments with a doctor.

The report was the first nationwide assessment of the VA's dysfunctional waiting-list practices, which have scandalized the department after reports surfaced in April that several veterans died while awaiting appointments at the Phoenix facility.

The audit, which examined 731 VA hospitals and clinics, reported mass confusion about record-keeping practices and exposed pressure at some facilities to "utilize unofficial lists or engage in inappropriate practices in order to make waiting times appear more favorable." Thirteen percent of surveyed VA schedulers said they were instructed to falsify appointment dates in order to satisfy internal waiting-time goals that were connected to bonuses. It also said that the VA's 14-day scheduling goal for patients was "unattainable," which led employees to game the system.

As a result, the VA's acting secretary, Sloan Gibson, announced a slew of reforms on Monday, including an end to the 14-day scheduling goal, new patient surveys for more real-time location-sensitive feedback, and a hiring freeze for VA headquarters and the 21 regional health-care offices around the country. "It is our duty and our privilege to provide veterans the care they have earned through their service and sacrifice," Gibson said in a statement. "We must work together to fix the unacceptable, systemic problems in accessing VA health care."

Testifying before the House Veterans Affairs Committee on Monday, Richard Griffin, the VA's acting inspector general, challenged the VA to initiate a nationwide review of veterans on waiting lists to ensure that they're being seen in a time that corresponds to the severity of their illness. Griffin also called on the department to provide immediate care to the 1,700 veterans identified by the inspector general as not being on existing waiting lists. 

* This story has been updated. 

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