Releasing the Taliban Five: A Choice, Not an Obligation
The U.S. can legally keep captured terrorists even after Afghanistan combat ends.

(Getty Images)


Andrew C. McCarthy

As usual, Senator John McCain has not exactly been a model of consistency on the Bergdahl-Taliban swap. First he said he would support such a deal; then, after it was done and popular opinion turned sharply against it, he maverickly condemned it. Still, he could not have been more correct on Sunday in dismissing the Obama administration’s rationale for the exchange.

Senator McCain was being interviewed by Candy Crowley, the Obama campaign savior in CNN garb. As recounted in a Corner post by Patrick Brennan, Ms. Crowley dutifully spun the reeling administration as being between a rock and a hard place, its options limited to: (a) getting captive Sergeant Bowe Bergdahl back now by exchanging the five Taliban commanders detained at Gitmo or (b) being compelled “to release the [Taliban] detainees when U.S. combat operations end in Afghanistan.” Senator McCain countered that this was a “false choice.” That is correct. Even if combat had ceased in Afghanistan, the release of these Taliban detainees would not have been required by the laws of war.

My weekend column discussed the Obama fiction that the war in Afghanistan is coming to an end. In reality, the president is engaged in a slow-motion surrender to the Taliban and its jihadist allies that is arbitrarily scheduled to take two years — arbitrarily, that is, unless you think it is the American political calendar rather than Afghan battlefield conditions that decides when combat ends. Now, on top of that fiction, the administration and Ms. Crowley are stacking yet another, to wit: The winding down of combat operations in Afghanistan equals the end of the war on terror, triggering the law-of-war mandate to release all enemy combatants who cannot be charged with war crimes or other offenses.

As we’ve been pointing out here for over a decade, combat operations in the ongoing conflict are taking place under a congressional authorization for the use of military force. The AUMF was enacted overwhelmingly a week after the attacks of September 11, 2001. Recognizing that the jihad against the United States is a global one carried out by an intercontinental network of terrorist confederates who do not restrict their operations to one country, the AUMF does not limit combat operations geographically. To the contrary, it authorizes the president to use force against the enemy — essentially, any persons, organizations, or countries complicit in the 9/11 attacks, or that have facilitated and harbored those who were complicit — anywhere in the world where the enemy can be found.

As we’ve also frequently noted, the conflict is labeled the “war on terror” because the government is reticent about naming the enemy — Islamic-supremacist jihadists — for fear of giving offense to Muslims. That, however, is not the only reason for this amorphous label. There is also the difficulty of pinning down the locus of the conflict. It has never been limited to Afghanistan. Consequently, even if the fighting in Afghanistan were really ending, that would not mean the war is over.

Recall that Osama bin Laden was killed and Khalid Sheikh Mohammed was captured in Pakistan, not Afghanistan. While drone attacks have been suspended in Pakistan at the request of its government, the administration has reserved the right to start them up again at any time because al-Qaeda and its allies — e.g., the Haqqani network and the Pakistani Taliban — still feverishly operate there. Indeed, while President Obama runs around absurdly claiming to have “decimated” al-Qaeda, the enemy is ascendant in Iraq, Syria, and Libya. It is making significant inroads across northern, central, and eastern Africa. It is anything but quelled in Afghanistan, notwithstanding the president’s purblind drawdown — which itself is the logical extension of the irresponsible combat rules of engagement with which the commander-in-chief has straitjacketed our troops.

Meanwhile, on September 11, 2012, four Americans, including our ambassador to Libya, were killed by jihadists in Benghazi — the culmination of a string of attacks against U.S. and Western targets there. Earlier that day in Egypt, home to several top enemy terrorists (including the brother of al-Qaeda’s leader, Ayman al-Zawahiri, and the son of imprisoned terrorist icon Omar Abdel Rahman, the Blind Sheikh), jihadists led the storming of the American embassy in Cairo. In Yemen, where U.S. forces killed the infamous al-Qaeda operative Anwar al-Awlaki in 2011, a series of drone-missile strikes were carried out just a few weeks ago, killing dozens of jihadists.

We could go on at much greater length cataloguing the fighting outside Afghanistan. For present purposes, though, the point is that same AUMF that continues to enable the president to kill enemy combatants also continues to authorize his detention of enemy combatants. When Obama releases enemy detainees — when he replenishes the Taliban with highly capable jihadist commanders, even though the Taliban and its allies are still conducting terrorist operations against our men and women in harm’s way — that is a choice, not a requirement.