by Stephen C. Lessard, Esq.
The Obama administration is considering the release of five Taliban prisoners detained at Guantánamo Bay to improve peace talks with the Afghan insurgency. The Obama Administration has suggested that the transfer could provide a "confidence-building" measure toward peace talks with Taliban leaders as it brings the U.S.-led war in Afghanistan to a close. It has been reported that several Taliban negotiators have begun meeting with U.S. officials in Qatar to discuss preliminary trust-building measures, including a possible prisoner transfer. The Afghan Taliban has confirmed that such pre-peace talk confidence building measures are in the process of being developed and implementation of such measures could facilitate an understanding between the United States and the Taliban. U.S. officials would not deny that meetings had taken place, and the discussions seemed to have at least the tacit approval of Pakistan, which has thwarted previous efforts by the Taliban to engage in talks.
Former Taliban officials have described fairly advanced discussions in Qatar about the transfer of prisoners. One former official said that five Taliban prisoners were to be transferred in two phases, two or three in one group and then the remainder. Last week, James Clapper, Director of National Intelligence, and Matthew Olsen, Director of the National Counterterrorism Center, told the Senate Intelligence Committee that the five being considered for release were among those assessed in 2009 to be too dangerous to release and too difficult to be tried. It would be the first time detainees from the "too dangerous to transfer" list have been relocated outside of U.S. control. But Clapper said that assessment, recently revised, was based on returning them to Afghanistan.
The five Guantánamo detainees are believed to be Khair Ulla Said Wali Khairkhwa, former Afghan Minister of Interior; Mullah Mohammad Fazl, former Taliban Deputy Minister of Defense; Mullah Norullah Nori, a former senior Taliban commander; Abdul Haq Wasiq, former Deputy Director of Taliban intelligence; and Mohammad Nabi Omari, former Taliban chief of communications. Although Administration officials say none of those being considered for release has been involved in killing Americans, human rights organizations have called for Fazl and Nori to be prosecuted for war crimes for presiding over the mass killing of Shiite Muslims in Afghanistan in 2000 and 2001 as the Taliban sought to consolidate its control over the country.
Marc Grossman, the Obama administration's special representative for Afghanistan and Pakistan, played down talk of detainee releases, noting that the United States had not yet made any decision on the issue. He said the Obama administration would meet the requirements of U.S. law and also consult with Congress. Under the law, the defense secretary must certify to Congress that the transfer of any Guantánamo prisoner to a foreign country would meet certain requirements, including that the country maintains control over its prisons and will not allow a transferred detainee to become a future threat to the United States. If any detainees were released, they would likely be transferred to Qatar and held there.
Republican and Democratic lawmakers have voiced serious concerns over the possible move, which would reflect a significant strategy shift in the U.S. war in Afghanistan. Republican lawmakers are particularly voicing growing alarm over a possible deal with the Taliban. The chairman of the House Intelligence Committee, Mike Rogers, said Thursday that the United States was "crossing a dangerous line" by discussing the possibility of releasing the prisoners.
In a letter to President Obama, Rep. Duncan Hunter, R-California, warned that the release would "send the wrong message to the Taliban," writing that "Releasing prisoners strictly for the purpose of accelerating negotiations undermines the U.S. mission in Afghanistan and deliberately ignores the threat of a Taliban resurgence." Sen. John McCain, R-Arizona, called the potential release "really, really bizarre" and a "very, very bad idea." McCain also expressed doubt as to whether Qatar would ensure that the Taliban detainees were secured.
Administration officials maintain that such transfers, though controversial, are not new when trying to end combat. Clapper told the Senate Intelligence Committee that in almost every case where the United States has been involved in hostilities, at some point in time, there were similar negotiations. He also noted that part of such a decision would be the actual determination of where the detainees might go and the conditions in which they would be controlled or placed under surveillance.
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