Last week an American envoy was telling us that talks with high-level Taliban officials opening an office in Qatar were not going to happen any time soon:
. . . the envoy, Marc Grossman, implicitly rejected reports that he planned to begin negotiations there this week. He made it clear that there was a long way to go.
This week, reports indicate that not only have the Taliban begun talks with the U.S., but, the first items on the agenda are the business of releasing five high-level Guantanamo detainees and removing Taliban members from NATO's "kill or capture" list:
The former Taliban officials here described fairly advanced discussions in Qatar about the transfer of prisoners. One former official, Syed Muhammad Akbar Agha, who had been a Taliban military commander, said that five Taliban prisoners were to be transferred in two phases, two or three in one group and then the remainder.
There has also been discussion in Qatar of removing some Taliban members from NATO’s “kill or capture” lists, the former Taliban officials said.
In the National Law Journal today, I summarize the high-level detainees the U.S. is now considering releasing:
. . . a former top Taliban intelligence official, and a major Taliban financier, but also former Taliban Deputy Defense Minister Mohammed Fazl, a "high-risk detainee" alleged to have killed thousands of innocent Afghan Shiite Muslims between 1998 and 2001.
Square these friendly talks with the knee-jerk vilification and condemnation of John Walker Lindh, a low-level foot soldier in the Taliban — and an American no less.
. . . [Lindh] is serving a stiff 20-year sentence for two relatively minor charges because he had the misfortune of being a defendant in the first terrorism prosecution in the United States after the attacks of Sept. 11, 2001.
When the United States captured Lindh in late 2001, the public attention created nothing short of mass hysteria. Lindh was dubbed the "American Taliban," and a trophy photo circulated worldwide of him naked, blindfolded, tied up and duct-taped to a board with an epithet scrawled across the blindfold. That was our first glimpse of American-sponsored torture and we didn't even flinch. The Lindh case was a harbinger of what would occur on a much larger scale at the American-run Abu Ghraib prison in Iraq and elsewhere. President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell and sens. Hillary Clinton and John McCain made inflammatory statements that Lindh was an al-Queda fighter, terrorist and traitor; had fired his weapon; had attended a terrorist training camp; and had foreknowledge of 9/11 — even though the government knew from the early days of Lindh's capture that none of this was true.
It is no wonder the State Department was cagey about the nature of current negotiations:
The State Department spokeswoman Victoria Nuland has said only that Marc Grossman, the Obama administration’s special representative for Afghanistan and Pakistan, had “a number of meetings” related to Afghanistan when he visited Qatar last week.
Our on and off relationship with the Taliban goes back decades. We aided the Taliban during the Cold War, when the Taliban served as anticommunist opposition after the Soviet Union invaded Afghanistan. During the past five administrations (Carter, Reagan, Bush I, Clinton, and Bush II), the U.S. provided the Taliban with military and humanitarian assistance, even giving $43 million in humanitarian aid to Afghanistan just four months before 9/11.
Unfortunately for Lindh, our new found talk-it-out attitude toward the Taliban is 10 years too late to save him from decades in prison.
Within law, the principle of proportional justice is used to describe the idea that the punishment of a certain crime should be in proportion to the severity of the crime itself as well as the penalties meted out to others for similar crimes. The Lindh case is a study in the utter failure of proportionality. Those guilty of similar, or far worse, crimes have received little or no penalty. This latest secretive effort at a reconciliation process — a thinly veiled attempt to justify a troop withdrawal from the Afghanistan war — is yet another example of what happens when the penological purpose of punishment is rooted in politics, not justice.
For more details on John Walker Lindh case and my experience as a Justice Department whistleblower in the case, the second edition of my book - TRAITOR: The Whistleblower and the "American Taliban" - will be out next week, and a chapter is available online here.