What Role Will Released Taliban Detainees Have in Afghanistan’s Future?

A provincial governor and one of the more moderate co-founders of the Taliban, a top military commander (who was betrayed by our war criminal Rashid Dostum, and against whom credible war crimes complaints have been raised), another provincial governor, Deputy Chief of Taliban Intelligence, and a minor judge.

These are — according to an Afghanistan Analysts Network report drawing on years of engagement — the men whom President Obama just traded for the released of Bowe Bergdahl. They will remain under a travel ban in Qatar for a year. Then what?

While the usual sources are declaring all of them — rather than just some of them — among the most dangerous men at Gitmo and warning they’ll be attacking American soldiers imminently, I’m more interested in what role these men — four of whom are clearly key leaders, including legitimate military and intelligence leaders — will play in Afghanistan after we leave.

I ask that because, while I believe Obama has botched the legalities of the transfer (he should have noticed Congress, even if not the full 30 days in advance; bmaz should have more to say on that later), I think the most useful way to approach the swap is the way Ken Gude does: we would have had to release these men within a year or so anyway, and so we’re better off freeing Bergdahl in the process.

When wars end, prisoners taken custody must be released. These five Guantanamo detainees were almost all members of the Taliban, according to the biographies of the five detainees that the Afghan Analysts Network compiled in 2012. None were facing charges in either military or civilian courts for their actions. It remains an open question whether the end of U.S. involvement in the armed conflict in Afghanistan requires that all Guantanamo detainees must be released. But there is no doubt that Taliban detainees captured in Afghanistan must be released because the armed conflict against the Taliban will be over.

Sgt. Bergdahl was a U.S. soldier captured in an active zone of combat. The circumstances of his capture make him a Prisoner of War, not a hostage as some have erroneously claimed. In traditional conflicts, both sides would release their prisoners at the conclusion of hostilities. This is not a traditional conflict, however, and the Obama administration rightly had no expectation that Sgt. Bergdahl would have been released when U.S. forces redeployed out of Afghanistan. As that date neared, any leverage the United States possessed would have been severely undermined.

But I’m also fascinated by the messaging problem years of conflating the Taliban and Al Qaeda is now causing.

Regardless of the allegations against some — and the evidence against Mullah Fazl Mazlum — as Taliban (and Haqqani, in the case of the judge) they were also lawful combatants (if that — several were civilians when captured) of a state at war with the United States. If we plan on ending that war, these men will be entitled to engage in the politics and fighting that will determine Afghanistan’s future going forward. Several of these men appear to have the kinds of skills Afghans will need to rebuild their country — though it’s unclear what kind of credibility they’ll have after years of rotting in an American prison. And of course, it’s not even clear what role the Taliban will have after we leave.  We certainly haven’t defeated the Taliban!

(Some of) these men may be dangerous, in the same way Stanley McChrystal would rightly be viewed as dangerous if captured by our adversaries. But they are also members of entity that governed Afghanistan when this war started, an entity that is likely to play some role, for better and worse, going forward.

And yet the debate about their release seems to forget that distinguishes them from the terrorists.

21 replies
  1. Garrett says:

    Tricky territory, but some carefulness is needed in blaming the betrayal of the surrendering Taliban only on General Dostum. Dostum’s version of events around Dasht-e-Leili is here. Mohammad Fazl and Norullah Noori are discussed, and are shown in photographs there.

    As a common theme from the early days of the war, Afghan commanders had wanted negotiated surrenders where Taliban could return to their homes and retire from political life. But the Bush administration had a smoke them out, kill them all mindset. The Bush administration mindset can be seen as a contributing factor in Dasht-e-Leili and related events.

    The cycle of reprisals and atrocities between the Taliban and the Northern Alliance is an important part of the local history. I take under consideration, at least, Dostum’s claims that he had been wanting to avoid more of that in late 2001.

    • emptywheel says:

      Fair enough. My basis for the claim of betrayal stems from the payment Dostum is alleged to have taken. But I definitely agree the urge to treat the Taliban as terrorists rather than as legal warriors was driven by the US.

      Which is how we got here, no?

  2. Garrett says:

    Here is how Alex Strick van Linschoten and Felix Kuehn expressed it in 2011:

    When the United States launched its offensive on October 7, 2001, the Taliban’s organization disintegrated under the pressure of the military campaign. Many Taliban returned to their villages and waited to see what would happen. Soon they found themselves targeted by U.S. Special Forces and the new Afghan elites. These actions were dictated by President Bush’s policy of making no distinction between members of the Taliban, whose regime had harbored al-Qaeda, and al-Qaeda itself. Those who escaped death or capture and detention in Guantánamo or Bagram fled to Pakistan.

    The political process established by the Bonn Agreement of December 2001 was intended, at least by its UN sponsors, to provide a mechanism for integrating Taliban who agreed to become lawful participants in the new order. Isolated and in hiding in Pakistan, the Taliban leaders tentatively explored whether this promise might be sincere. They discussed the possibility of joining the political process that was unfolding in Kabul – notably at meetings in 2002 and 2004 – but these discussions came to little. A combination of factors caused the leadership to begin an insurgency.

    Separating the Taliban from al-Qaeda

  3. scribe says:

    Sorry, EW. I’m of the opinion that the statutory provision requiring 30 days’ advance notice to Congress is, constitutionally speaking, worthless. I am of the opinion that a prisoner swap such as the Bergdahl trade is well within both the Commander-in-chief power and the “conduct foreign relations” power of Article II. I haven’t paid as much attention to the wingnuts fulminating (or, as the German papers said, foaming at the mouth – literal translation) as maybe I should have, but there’s so little coming from the Rethugs that’s worth listening to I figure I haven’t missed much. Like a broken record, they’re pretty predicable after hearing them enough times.

    One need only look to history to see the innumerable prisoner swaps conducted in our past wars, more frequently in the Civil War and the earlier conflicts than in later, more recent wars. Those were often carried out on the initiative of theater commanders or sometimes even lower-level commanders, with little or no advance notice to Congress and possibly not even the President of the time.

    In this instance, achieving the objectives of this war – i.e., being a Commander-in-Chief – would have militated for negotiating for Bergdahl’s release if only to tie up a loose end and avoid future political recriminations for “leaving Americans behind”. I can think of probably a dozen other good reasons to do it if I wanted to spend the time, but I don’t.

    Moreover, because this necessarily involved dealing with someone in a position of leadership in a foreign entity – regardless of whether that entity was a state or just a faction – it fell squarely within the “conduct foreign relations” prong of Article II. Just looking for an example off the top of my head I can go back to the Louisiana Purchase. Jefferson committed the US to buy the territory in the absence of any appropriation, did it all without any notice to Congress and presented them with a fait accompli. They bitched and moaned but came around and ponied up the cash.

    Frankly, I’m a little surprised that no one defending the admin on this issue has seen fit to retort to McSame by reminding him that we coulda left him in the Hanoi Hilton and we would have all been a lot better off if only for not having to listen to him chewing on the English language. And that we negotiated with the North Vietnamese – then our sworn enemies du jour – to get him and others back. And that governments, Republican and Democrat, routinely get embarrassed by the POW/MIA issue, be it alleged Vietnam war PWs still in some jungle camp or Korean War grunts allegedly left out of the accounting in 1953 and tossed aside as “too difficult” to get back, back then. Hell, Sly Stallone made a movie career out of PWs left behind by a callous unfeeling government, when he wasn’t playing a bad boxer. And as to Cindy McSame’s complaint about, well, whatever it was involving her sons, she should remember Al Gore’s example. About 10 minutes after it was clear his father had lost re-election to the Senate, the Nixon WH had cut orders sending Al Jr. to Vietnam. As an infantryman, IIRC. At the time, the Nixon folks got all sorts of credit and respect from the Right for “having big balls” and “playing hardball”. Cindy’s sons could very easily be reclassified from whatever REMF jobs they have into grunt infantrymen and be sent out to walk point until they were killed or maimed just because their mother had pissed off the President. When you put on the uniform, those are the risks you take. Commanders can be quite petty when they want to be, especially when they decide to go all pour encourager les autres.

    I recognize there’s an argument to be made about signing statements and all that. Granted, I detest the idea of signing statements – they run afoul of the Constitution, IMHO. But, the Rethugs have no one to complain to about this. Bushie made a huge use of signing statements to elide statutory provisions he didn’t like in bills he nonetheless signed, and sauce for the goose is sauce for the gander. Moreover, another argument can be made by juxtaposing the statute purporting to forbid release without consulting Congress and the various AUMFs still in force. As I recall it, both the Afghan AUMF and the Iraq AUMF (still in force) give the President extremely wide latitude to do things he deems “necessary” to carry out these wars. OTOH, if I were President, I would have vetoed the bill if it had reached me with the “notify” language in it and I would have made clear – in an attempt to get a clean bill in the first place – that the veto would be there. Constitutionally speaking it would have been a hell of a lot cleaner that way.

    Finally, let’s cut to the chase here. The real reason behind the consultation requirement was to make releasing prisoners impossible. That’s the long and the short of it. At some point during the 30 days, someone on the Hill would have leaked the idea of releasing prisoners, after they’d lined up the WIngnut Wurlitzer to go full on into “fear, fear, fear” mode. And they would have scotched the deal. Easiest way to do that is send a letter monthly to Congress saying “I am having members of the Administration looking for ways to recover our POW(s) and, if that means trading prisoners from Gitmo, I’ll do it if the price is right. This is your notice under the statute and if you don’t like it, STFU.”

    • emptywheel says:

      I agree with you in significant part. I know bmaz is going to argue the other side of it though, so I hope you repeat this comment once he does.

  4. Don Bacon says:

    These guys have been treated worse than household pets for years now, and so obviously they will not be great friends of the U.S. Forgive and forget? Not on the agenda.

    • emptywheel says:

      Yeah, meant to point that out. That said, many of the Libyans we also treated like household pets have been more tolerant of us since then than the UK.

      • Garrett says:

        There are also a fair number of stories about former Guantanamo and Bagram prisoners returning to run for Parliament, or take Afghan government positions, or even work with the U.S. military.

        It’s probably hard for us to guess what any individual released prisoner’s political stance, or attitudes towards the U.S., or interest in war and politics, is going to be.

        • emptywheel says:

          I suspect several of these guys will return to leadership too. Part of my point. Having high level Taliban also happens to mean having people with some skills to run the country, for better and worse. We just refuse to think of it that way because we have such a hard-set bad guy complex.

  5. P J Evans says:

    I had the thought that maybe the President notified congress in the same way that NSA does: tell one or two senior (and friendly) members. I have noticed that those screaming about not being notified aren’t at the top of the committees for either intelligence or the military.

    • emptywheel says:

      Problem is the first person he’d have to inform — DiFi — has problems with the transfer. Carl Levin, however, does not, much.

      • P J Evans says:

        I wish DiFi would admit she’s now a Republican so we could kick her out of that spot.

  6. Don Bacon says:

    Signing statements are part of the growing unconstitutional practice of executive privilege, aided by a supine Congress, which also includes presidential treaties with other countries (e.g. Iraq and Afghanistan) and executive orders.

    Regarding @ scribe . .

    Commander-in-chief power and the “conduct foreign relations” power of Article II

    The CIC power is limited

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

    and the alleged power to unilaterally conduct foreign relations doesn’t exist.

  7. Don Bacon says:

    These guys will be be attacking American soldiers imminently? Now why would they attack an occupying military force that overthrew their government? Only a “terrorist” would do that. These are very dangerous people, unlike us. We’ve been killing people over there for twelve years, with the best of intentions. We good, they bad. /s
    There is no sanity in the US foreign policy. Even the language is perverted.
    It’s “newspeak” out of George Orwell’s 1984:
    Newspeak is the fictional language in the novel Nineteen Eighty-Four, written by George Orwell. It is a controlled language created by the totalitarian state as a tool to limit freedom of thought, and concepts that pose a threat to the regime such as freedom, self-expression, individuality, peace, etc. Any form of thought alternative to the party’s construct is classified as “thoughtcrime.”

  8. squidword says:

    Don, the thing is that pure originalism as you are using it cannot perfectly exist in drastically different environment. Cass Sunstein, whom dis-attributes Jack Kakove on some dimensions of this issue, had a recent op-ed about this in some tiny village. Sunstein, whom believes in expanding the executive to the level of the Supreme Court with responsibility to be the ultimate decider on Federal law, is typical of the originalist whom is not really. And treaty law responsibility was indeed reconfigured since the Jay Treaty.

    • Don Bacon says:

      The executive, the person who is supposed to manage things, instead exceeds his authority via a dreamed up power that the almost invisible Congress — current popularity about five percent — which constitutes a failure in democracy.
      It would not be impractical to do it correctly. The US-Iraq pacts dealing with the end of that war are examples. There were two agreements. On the Iraq side the agreements went througb their parliament. On the US side, where according to the Constitution treaties (international agreements) the president wouldn’t even release the wording of the proposed treaties. The House attempted to have hearings, but they weren’t allowed to see the proposed treaty. The Senate, then under Biden and president-elect Obama, showed zero interest.
      Afghanistan is similar.
      Democracy is dead in the US. The elections stink, with 60% voter participation in the presidentials, the off-years are worse. The Congress is ineffective. The president, totally unqualified, a man who has accomplished nothing in life besides winning elections, is by fault endowed with unfettered power. It’s wrong. –Hail to the chief. /s

  9. Ben Franklin says:

    As to the legality; it matters not.

    “With respect to the separate 30-day notification requirement in Section 1035(d), the Administration determined that the notification requirement should be construed ****not to apply to this unique set of circumstances****, in which the transfer would secure the release of a captive U.S. soldier and the Secretary of Defense, acting on behalf ofthe President, has determined that providing notice as specified in the statute could endanger the soldier’s life.”


    This sounds similar to SCOTUS’s *one-time* diversion from the Constitution in the 2000 Presidential

  10. Don Bacon says:

    In other words, the Congress couldn’t be trusted with State secrets (and Berdahl’s life) like the Administration can be trusted. hah

  11. TarheelDem says:

    One of the most thought-provoking analyses I’ve seen since the event. Kudos, ew.

    Clausewitz “war is politics by other means” means that the end of war is fundamentally political as well. Unfortunately for the post-World War II period and possibly much before that, the US has seen war as military policy almost devoid of politics–or more acccurately as a suspension of politics until a victory or defeat is clear. And instead of being framed in the form of political objectives, US foreign policy has come to be seen by the Congress and the executive as a matter of national will.

    The Taliban will have to have a role in stable politics of Afghanistan in the same way that the Moslem Brotherhood and Salafists have to have a role in Egyptian politics and Dominionists have to have a role in US politics. In all three countries the popular will is that the role not define the political and social system; there are other political movements at play. To the extent that the release of these Taliban leaders brings this about even if the stable politics that emerges is not aligned with the US, it is an interesting gamble.

    From the background presented, their roles were more political than military and being out of the movement for over 12 years puts them in a different position of leadership than they had 12 years ago. Former rivals have had different fates. Over the period of 12 years, several new generations of leaders have passed, and the Taliban today is not the Taliban of 12 years ago. Its internal politics is not the same as 12 years ago. As POWs, they will have some symbolic role, much as John McCain gained after his release. And likely they will have a clearer understanding of how the US military operates. And that will affect their political strategies as much as their military ones.

    Disposition of POWs and “enemy combatants” is a pre-condition to rolling back the legal authorities of war.

  12. P J Evans says:

    Congress certainly knew about the talks more than 30 days ago. McCain was talking about how good it would be to get Bergdahl back.
    So I call bullshit and shenanigans on their current whining.

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