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Obama Flips on Taliban Commander

Three years ago, Obama went to court to keep a Taliban leader at Gitmo. Now he's out.

11:00 AM, Jun 7, 2014 • By STEPHEN F. HAYES
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While some top Obama administration officials are downplaying threats posed the five senior Taliban officials released from Guantanamo in the prisoner exchange for Bowe Bergdahl, not long ago the administration went to court to prevent one of those men from going free. In a decision on May 31, 2011, the United States District Court for the District of Columbia, ruled in favor of the government--and "Respondent Barack Obama"--in its effort to keep Khairulla Khairkhwa in detention. That decision, once classified "Secret," has since been declassified and released.

Khairkhwa

Today, with these Taliban leaders free in Qatar and already looking likely to rejoin the fight against America, top Obama administration officials are seeking to reassure Americans that the threats are minimal--or, in the words of Defense Secretary Chuck Hagel, "sufficiently mitigated." But just three years ago, the same administration argued in court against Khairkhwa's writ of habeas corpus because of his senior position with the Taliban, his close relationship with Taliban leader Mullah Omar, and his support for Taliban forces fighting against the United States. 

The case provides a window on the Obama administration's concerns--concerns that many top intelligence and military officials continue to have. The court summarized the government's case this way. "The government contends that the petitioner, a former senior Taliban official, is lawfully detained because he was part of Taliban forces and purposefully and materially supported  such forces in hostilities against the United States," the court wrote in the introduction to its opinion.

The decision affirmed the arguments put forth by the Obama administration, noting that Khairkhwa "was, without question, a senior member of the Taliban both before and after the US-led invasion of Afghanistan in October 2001." It continued: Khairkhwa was "a member of the Taliban's highest governing body, the Supreme Shura" and "was a close associate of Taliban leader Mullah Mohammed Omar, who appointed him Governor of the province of Herat in 1999."

Khairkhwa's legal team argued that he had no military responsibilities with the Taliban, but the court found that "the record belies that contention." Why? In part because of what Khairkhwa himself acknowledged doing.

"The petitioner admitted that after the terrorist attacks of September 11, 2001, he served as a member of a Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran's offer to provide the Taliban with weapons and other military support in anticipation of imminent hostilities with US coalition forces," read the opinion. "The petitioner has also exhibited detailed knowledge about sensitive military-related matters, such as the locations, personnel and resources of Taliban military installations, the relative capabilities of different weapons systems and the locations of weapons caches."

This knowledge, the court found, was not for theoretical purposes. "The petitioner operated within the Taliban's formal command structure, providing material support to Taliban fighters both before and after the outset of hostilities with US coalition forces."

Khairkhwa was close to Mullah Omar, the Taliban leader who welcomed al Qaeda to Afghanistan and was instrumental in the facilitation of their activities, both before and after the 9/11 attacks. "Even after the US led invasion of Afghanistan," the court found, Khairkhwa "remained within Mullah Omar's inner circle, despite the fact that Mullah Omar had limited his contact to only his most trusted commanders." 

The Obama administration argued that Khairkhwa had fought with the mujahideen in the 1980s "and remained deeply involved in the Taliban's military operations until his capture in early 2002." Khairkhwa, according to the government's case, has vast experience on the ground as a military leader, having commanded the Taliban forces during their offensive on Mazar-e-Sharif in 1998, among other efforts. Eyewitnesses to those attacks described a "systematic massacre" of local Shiites as part of the Khairkhwa-led offensive. 

The court found persuasive the Obama administration's argument that Khairkhwa helped lead Taliban fighters after the beginning of hostilities with the U.S. in the fall of 2001. Khairkhwa "had a "long history of involvement with the Taliban's military affairs" and was a "prominent and influential leader within the Taliban."

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