The U.S. can legally keep captured terrorists even after Afghanistan combat ends.
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.
It is just priceless to hear Obama-administration officials wail, in response, that President Bush released hundreds of enemy combatants too. Many of the lawyers making Obama-administration policy spent the Bush years volunteering their services to the enemy detainees, demanding that Bush release them and shut down Gitmo. Attorney General Eric Holder, for example, filed a brief on behalf of Jose Padilla — the “dirty bomber” sent to the U.S. by bin Laden and KSM to attempt post-9/11 bombings — arguing that the terrorist should be treated as a criminal defendant, not an enemy combatant. The Obama Justice Department’s third-highest-ranking official, Associate Attorney General Tony West, donated his services to represent John Walker Lindh, captured in Afghanistan while fighting for the Taliban against U.S. forces. We could go on . . . and on, because there are several such lawyers.
So yes, the Bush administration should not have released so many detainees. But let’s not forget the context, which included Mr. Holder, as an Obama-campaign flack, delivering fire and brimstone to the “social justice” choir at the American Constitution Society, decrying President Bush’s purported denial of “due process” to “hundreds of accused enemy combatants.” The release of enemy combatants like the Taliban commanders is exactly what Obama and his minions have been working and calling for all along. Now that they have the power to do it and are using it, how craven for them to blame Bush. The Bush administration’s reluctant release of enemy combatants was an accommodation of the Obama Left — to say nothing of Senator McCain’s cabal of weathervane Republicans, who also demanded that Gitmo be shuttered.
President Bush was doing his best to weather hostility from the courts and foreign governments toward his sound policy of detaining enemy combatants indefinitely under the laws of war — hostility that was incited by the Obama Left’s demagoguery against this practice. He walked the fine line of keeping top jihadists under lock and key while transferring lesser operatives to governments that gave often half-hearted commitments to monitor them. Inevitably, many terrorists who should not have been sprung returned to the jihad.
The idea, however, was to concede the release of lesser players in order to maintain support for keeping the worst of the worst from going back to the battle. For Obama partisans now to argue that Bush released hundreds more detainees than Obama has misses the point that the detainees left at Gitmo when Obama took office in 2009 — over seven years after the detention camp opened — were the worst of the worst. Among them was a special category of incorrigible terrorist: The jihadists that even Obama’s hand-picked review committee, though desperate to make good on the president’s vow to close Gitmo, concluded should not be released. In that category were the Taliban Five — the jihadist commanders Obama has just fortified the enemy by releasing.
Personally, I do not believe any enemy combatants in detention should be repatriated at this time, when the enemy is on the rise. For argument’s sake, though, if we were still holding any low-level Afghan jihadists who we could be confident would never travel outside Afghanistan to attack Americans, it might make sense to repatriate them after U.S. forces have withdrawn from Afghanistan.
The Taliban commanders, however, are leaders of the global jihad. As shown by the Foundation for Defense of Democracies’ Tom Joscelyn, they were among the top officials who cemented the Taliban’s alliance with al-Qaeda. That is the very arrangement that gave bin Laden’s network the launch-pad it needed to attack the United States embassies in Kenya and Tanzania in 1998; the U.S.S. Cole in Yemen in 2000; and New York City and Washington in 2001.
The conclusion of the fighting in Afghanistan, even if it really had been reached — and it hasn’t, not by a long shot — would not have triggered a legal obligation to release the Taliban Five. As long as the AUMF continues to authorize American combat operations against al-Qaeda and its allies throughout the world, those highly experienced, lethally competent, virulently anti-American jihadist commanders could lawfully have been detained.
Obama released the Taliban Five because he chose to do so, not because he had to do so.
— Andrew C. McCarthy is a policy fellow at the National Review Institute.