Released Taliban Detainees: Not So “Innocent” After All?

Today’s Washington Post contains an interesting article about the backgrounds of the five released Taliban detainees entitled "Freed prisoners were battle-hardened Taliban commanders." According to the Post, “One of the freed men was the head of the Taliban’s army. Another arranged for al-Qaeda trainers to visit Afghanistan. Another has been implicated by the United Nations for killing thousands of Shiite Muslims.” I do not agree, as some Republicans are already arguing, that these individuals should not have been released. In my view, the U.S. would not be able to hold them forever. Indeed, it is likely that the U.S. would be required, as a matter of international law, to release them shortly after the end of 2014, when U.S. combat operations cease in Afghanistan. The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan. The backgrounds of these Taliban leaders do underscore, however, that the detainees in Guantanamo were not all “innocent” people who were in the wrong place at the wrong time, a narrative that has been urged by many critics of Guantanamo, especially in Europe. Moreover, the Taliban leaders’ backgrounds demonstrate that it would have been legally difficult, if not impossible, to prosecute them in federal courts -- as many human rights groups have urged -- because U.S. criminal statutes did not apply to their activities in Afghanistan and because the U.S. military had not collected evidence about them that would have been admissible in federal court. And, if the Taliban had actually been treated as POWs under the Geneva Conventions (for which there has always been a good argument), they would have had to be prosecuted in a military court, not a civilian court, pursuant to Article 102 of the Third Geneva Convention. In short, all of this demonstrates that -- while Guantanamo has indisputably caused great harm to the reputation of the United States (and should in my view be closed) -- the practical issue of what to do with al Qaida and Taliban leaders captured in Afghanistan (both in 2001 and today) has been a much more difficult problem than critics of Guantanamo, including President Obama, members of the Obama Administration, and human rights groups, have been willing to acknowledge.