What About Alan Gross?

WASHINGTON -- The release of Sgt. Bowe Bergdahl in exchange for five Taliban detainees raises the question: What about Alan Gross, the State Department subcontractor who has languished nearly as long in a Cuban jail?

Don't count me among those who pronounce with certitude on the wisdom -- or folly -- of the Bergdahl deal. It was an agonizingly hard call, one that requires more knowledge than is publicly available about the dangerousness of the five Taliban officials and America's ability to keep tabs on them once released.

If pushed, I would come down, tentatively, against the swap. As much as I empathize with Bergdahl's family and respect the "leave no soldier behind" ethos, I am swayed by the murky circumstances preceding his capture -- was he intending to desert? -- and the riskiness of the release.

What would the president say to the parents of a soldier killed in the hunt for Bergdahl -- or, worse, to civilians murdered in a future terrorist plot masterminded by the detainees previously determined too dangerous to allow to leave Guantanamo? What makes that calculus suddenly safer for the United States?

But having made the Bergdahl deal, the president ought to consider: What is the justification for freeing these Taliban officials in exchange for Bergdahl and summarily rejecting the notion of a much more benign release in order to secure Gross' release?

To review: Gross is a civilian subcontractor for the State Department's Agency for International Development who has been held for nearly five years in a Cuban prison. He was convicted and sentenced to 15 years for "acts against the ... territorial integrity of the state" -- bringing cellphones, personal computers and networking devices to help connect Cuba's tiny Jewish community to the Internet as part of a democracy promotion program.

This might have been a naive enterprise by a contractor in over his head (Gross was a fan of Cuban music, about the extent of his expertise) or more sinister than acknowledged (some of the equipment Gross was bringing to Cuba was awfully sophisticated). But it was done under the auspices of the U.S. government, in furtherance of a U.S. law, the 1996 Helms-Burton Act.

Any U.S. civilian unjustly imprisoned by another country deserves official attention. One held captive because he was working for his country demands special consideration.

The Cuban government has made clear that it is willing to negotiate Gross' release, for an unsavory price: release of three remaining members of the Cuban Five, intelligence officers convicted in Miami in 2001 of being foreign agents and related offenses. The U.S. government has insisted there cannot be any linkage between Gross (not a spy) and the Cuban Five (actual spies). In earlier conversations with me, administration officials have suggested that the president's options are also limited because the Cuban Five were duly convicted and are serving prison terms.

The president's willingness to go to extraordinary lengths to secure Bergdahl's freedom prompts this response to their claims of tied hands when it comes to Gross: Oh please.

First, the president wasn't constrained by any niceties about soldier-for-soldier or spy-for-spy equivalences when it came to trading Bergdahl (soldier) for Taliban (enemy combatant).

Second, in Bergdahl's case, Obama wasn't stopped by the fact that a federal law requires that Congress be notified 30 days in advance about the release of any Guantanamo detainees. The president -- appropriately, I believe -- invoked his executive authority to act unilaterally. Surely, given that he has undoubted constitutional power to grant pardons or commute sentences, the fact that the Cuban Five have been convicted is an excuse, not a real stumbling block.

Third, perhaps most important, the Cuban Five pose a distinctly smaller danger to American citizens than do the freed Taliban officials. They are no heroes, as Cuba would have it; the worst of the remaining three was convicted of passing along information that resulted in the shooting down of two Brothers to the Rescue planes and the deaths of four U.S. citizens.

But their goal was to shore up the Castro regime, not to attack the United States. They have served significant sentences. Releasing them would be a political risk -- sparking protests from Cuban-American legislators such as Sen. Robert Menendez, D-N.J. -- not a national security one.

Like Bergdahl, Gross' health is suffering. The 65-year-old went on a hunger strike earlier this year and has said he cannot take captivity much longer.

Unlike Bergdahl, Gross' president does not seem to be moved to take the steps necessary, however distasteful, to free him.

========

Ruth Marcus' email address is ruthmarcus@washpost.com.