Unexpected Road Block to Afghanistan Peace: Gitmo

Karen J. Greenberg in Wired, January 13, 2012

Media Source

Negotiating a peace deal with the Taliban after 10 years of war in Afghanistan is hard enough. But the stalemated politics of the Guantanamo Bay detention facility risk effectively killing the negotiations before they even have the chance to end the war.

The Taliban leadership has evidently decided it wants to talk peace terms. Among the things it wants as a gesture of good faith from its U.S. adversaries: the release of five detainees from Guantanamo.

Provisions in the defense bill recently signed into law by President Obama make it difficult to transfer detainees out of Guantanamo Bay, the terrorism detention complex that turns 10 years old this week. But they’re a symptom of a greater obstacle to a peace deal: Congress’ broad, bipartisan allergy to releasing any detainees from Gitmo at all.

The calendar actually makes it worse than that. 2012 is an election year. Opening Guantanamo Bay’s doors as a gesture to the Taliban is a narrative practically begging for a political attack ad.

An administration official, who requested anonymity to discuss the super-sensitive proposition, tells Danger Room that Obama hasn’t actually made a decision — except to rule out a straight detainee release. “We would never consider an outright release,” the official says. “The only thing we’d consider is a transfer into third-party custody.” And that might actually provide the administration with a way to get the talks going, get the detainees out of Gitmo without freeing them, and keep Congress on board.

Outside analysts, however, aren’t convinced. “Politically,” says Karen Greenberg, who directs Fordham Law School’s Center for National Security, “it’s a nonstarter.”

The White House is furious at a story last week in the Guardian that incorrectly reported that the Obama team already reached a deal with the Taliban. “The United States has not decided to release any Taliban officials from Guantanamo Bay in return for the Taliban’s agreement to open a political office for peace negotiations,” read a White House statement.

Too late. The story already bounced around the conservative blogosphere. “That move shows [Obama's] (short-sighted) willingness to deal with an enemy in order to pursue withdrawal from Afghanistan,” judged Blackfive. “While You Were Watching Iowa, Obama Was Springing Taliban Terrorists from Gitmo,” was National Review‘s headline.

That’s a warmup for what the Obama team can expect if it actually goes through with the gesture. The Senate Armed Services Committee recently received a briefing on the nascent peace talks, and Reuters reports that its major effect was to inspire opposition to the move in Congress even before Obama makes a decision. “It’s hard to envision that if they transfer really dangerous guys to a really dangerous place, there won’t be a fight,” a staffer told Reuters.

They’ll have plenty of opportunities to pick one. For two years, Congress has placed restrictions on transferring detainees out of Guantanamo, the legislative result of furious congressional opposition to Obama’s ill-fated desire to close Gitmo. Any detainee transfers or releases not mandated by courts must be accompanied by written assurances from the Secretary of Defense and Secretary of State that the detainee in question won’t commit any future acts of terrorism. It gets even harder if the administration might turn a detainee over to a country where a previous detainee has committed an act of terrorism after release. And Congress ensured it would have plenty of time to organize its opposition: The law requires the administration to notify Congress 30 days prior to an intended release.

The upshot is that no one has been released from Guantanamo since Jan. 6, 2011. Obama’s plan to close Guantanamo is stillborn. Rep. James Moran, a Virginia Democrat, argues that Obama never really pushed Congress to close the detention facility.

Add to that reluctance the additional complication that there probably won’t be any assurance that released Taliban detainees won’t return to terrorism. The Taliban is looking for a gesture to kickstart the talks, not forsaking violence from the start. And there are tons of ways negotiations between the two foes could derail: The Afghan or Pakistani governments could dissent, or the terms could merely be unbridgeable. U.S. spy agencies reportedly compiled an official analysis assessing the Taliban’s primary objective is to fight until the U.S. leaves. If they’re not serious about peace talks, then the Obama administration could find itself in a situation where it would have released detainees and gotten nothing in return.

But the scenario described to Danger Room by the anonymous U.S. official suggests a way the Obama team might — might — escape the dilemma.

One option, reported by the New York Times, is for Obama to turn the Taliban detainees over to the custody of Qatar, a U.S. ally that has allowed the Taliban to open a local office for the pursuit of a peace deal. No ex-detainee appears to have committed any act of terrorism after being transferred to Qatar; the only such detainee Qatar has taken is Jaralla Saleh Kahla al-Marri, whom the U.S. freed in 2008 after keeping him at Guantanamo for seven years.

It’s unclear if the Taliban would accept that half-measure. But the Taliban appear to be placing a premium on the peace talks. They decided not to make an issue out of a video of U.S. Marines evidently urinating on Afghan corpses, apparently out of concern that the negotiations would derail.

But it’s also unclear if Congress would accept that plan. Sen. Lindsey Graham, whom the White House considers its chief interlocutor amongst Republicans about terrorism detainees, would not comment to Danger Room. Neither would Rep. Buck McKeon, the chairman of the House Armed Services Committee. Congress is already ambivalent on the idea of peace talks with the Taliban; letting detainees out of Guantanamo in the pursuit of peace will just make a peace deal a harder sell on the Hill.

That’s another tragedy of a decade-long war. A step that might be necessary to end the war could run aground based on politicians’ commitment to detaining militants — in part, so they won’t fight in that very conflict.

The Pentagon won’t comment on the peace talks. But Navy Capt. John Kirby, one of the department’s chief spokesman, reminded reporters on Thursday that “We’ve always said that a political process is the way to ultimate success in Afghanistan.” Congress may soon have to decide if it cares more about keeping Guantanamo stocked than about that process. And Obama may soon have to decide if that process is worth taking criticism as he runs for reelection.