The Cable

Administration briefs Senate leaders on Taliban transfer

Top Obama administration officials briefed eight senior Senate leaders Tuesday on a pending deal to transfer as many as five Taliban prisoners from the U.S. detention facility at Guantánamo Bay, Cuba, to Qatar.

The Cable staked out the classified briefing in the basement of the Capitol building Tuesday afternoon. The eight senators who attended the briefing were Senate Majority Leader Harry Reid (D-NV), Minority Leader Mitch McConnell (R-KY), Senate Intelligence Committee heads Dianne Feinstein (D-CA) and Saxby Chambliss (R-GA), Senate Armed Services chiefs Carl Levin (D-MI) and John McCain (R-AZ), and Senate Foreign Relations Committee leaders John Kerry (D-MA) and Richard Lugar (R-IN).

The identities of the administration briefers were not shared, but we were told it was a high-level interagency briefing team.

All of the senators refused to discuss the contents of the briefing as they exited the secure briefing room in the Senate Visitors' Center. But Levin and McCain both discussed the issue in question before entering the briefing, namely the administration's negotiations with the Taliban over transferring the Taliban prisoners into Qatari custody.

Levin told reporters Tuesday that the briefing was "about the ongoing Taliban reconciliation efforts." Levin is open to the idea of transferring Taliban members to Qatar, but said the devil was in the details.

"It depends on what assurances we have from the [Qatari] government that they are not going to be released," Levin said. "But I also think the Afghans have to be very much involved in any discussions and any process. They weren't for a while."

"We're not releasing them. As I understand it they will be imprisoned in Qatar," Levin continued. But can the Qataris be trusted to keep them behind bars? "That's the question," Levin said.

Levin said he didn't know what the United States was getting in exchange for transferring the prisoners to Qatar, where the Taliban are preparing to open an office. But he said the possible transfer was not a significant concession to the Taliban, provided the prisoners remain in custody. "If that's what [the Taliban] are getting, it's not much of a gain [for them], going from one prison to another."

McCain, talking to reporters before the briefing, lashed out at the idea that the prisoners would be moved to Qatar in a possible exchange for a Taliban statement renouncing international violence, as has been reported.

"The whole idea that they're going to ‘transfer' these detainees in exchange for a statement by the Taliban? It is really, really bizarre," McCain said. "This whole thing is highly questionable because the Taliban know we are leaving. I know many experts who would say they are rope-a-doping us."

McCain said that Congress probably can't stop the administration from going ahead with the transfer if that's what it decides.

"I don't think right now we can do anything about it, but these people were in positions of authority. One of them was responsible for deaths of several Americans," said McCain, referring to reports that the prisoners being considered for transfer include Mullah Khair Khowa, a former interior minister, Noorullah Noori, a former governor in northern Afghanistan, and former army commander Mullah Fazl Akhund.

Is McCain confident that the Qataris will keep the Taliban prisoners locked up? "No I am not. And the Taliban don't think so either, otherwise the Taliban wouldn't want them transferred," he said.

McCain said he was last briefed about the potential deal in December.

Some of the confusion about the negotiations was caused when the State Department's Special Representative for Afghanistan and Pakistan Marc Grossman said on Jan. 22 that talks with the Taliban were a long way off and that no deal to transfer prisoners had been finalized. Grossman was in Kabul when he made the statements and he traveled to Qatar the next day.

On Jan. 28, several former members of the Taliban government said that talks with the United States had begun over the prisoner transfer. "Currently there are no peace talks going on," Maulavi Qalamuddin, the former minister of "vice and virtue" for the Taliban, told The New York Times. "The only thing is the negotiations over release of Taliban prisoners from Guantánamo, which is still under discussion between both sides in Qatar."

At Tuesday morning's open hearing of the Senate Select Committee on Intelligence, Chambliss pressed Director of National Intelligence (DNI) James Clapper, Central Intelligence Agency (CIA) Director David Petraeus, and National Counterterrorism Center (NCTC) Director Matthew Olsen to confirm that the Taliban under consideration for transfer were still viewed as too dangerous to release by the U.S. intelligence community.

"It appears from these reports that in exchange for transferring detainees who had been determined to be too dangerous to transfer by the administration's own Guantánamo review task force, we get little to nothing in return. Apparently, the Taliban will not have to stop fighting our troops and won't even have to stop bombing them with IEDs," Chambliss said. "I have also heard nothing from the IC[intelligence community] that suggests that the assessments on the threat posed by these detainees have changed. I want to state publicly as strongly as I can that we should not transfer these detainees from Guantánamo."

Clapper said he stood by the original intelligence community assessments, which concluded that the Taliban prisoners at Guantanamo were too dangerous to be released.

"I don't think anyone in the administration harbors any illusions about the potential here," said Clapper. "And of course, part and parcel of such a decision if it were finally made would be the actual determination of where these detainees might go and the conditions in which they would be controlled or surveilled."

Olsen, who led the review task force that evaluated the Guantanamo detainees in 2009, confirmed that the 5 prisoners being considered for transfer "were deemed too dangerous to release and who could not be prosecuted," but Olsen said he had not evaluated those five prisoners since then.

Petraeus said that his staff had been asked for a more recent evaluation of the five prisoners and that the CIA completed risk analyses based on different possible conditions for the Taliban prisoners' transfer.

"In fact, our analyst did provide assessments of the five and the risks presented by various scenarios by which they could be sent somewhere, not back to Afghanistan or Pakistan, and then based on the various mitigating measures that could be implemented, to ensure that they could not return to militant activity," Petraeus said.

The Cable

Obama administration employs controversial detention provision as legal defense

Last month, Barack Obama's administration resisted provisions codifying the right to detain prisoners indefinitely, arguing that putting such language into law was unnecessary and redundant. Now, the administration is using those very provisions to defend its detention of a suspected al Qaeda militant in federal courts.

The provision in question, Section 1021 of the 2012 National Defense Authorization Act (NDAA), "reaffirms the military's existing authority to detain individuals captured in the course of hostilities in accordance with the law of war." That authority was given to the administration in the 2001 Authorization for Use of Military Force (AUMF), passed by Congress after the 9/11 attacks. The Obama administration initially threatened to veto the defense authorization bill because it contained a stronger version of Section 1021, but then revoked its veto threat after House and Senate negotiators tweaked the language.

The provision nonetheless faced opposition from civil rights organizations and some senators, including Sen. Rand Paul (R-KY), out of concern that it could be used to justify indefinite detention of anyone suspected of terrorism, including American citizens.

President Obama specifically criticized section 1021 in his signing statement on the day the defense authorization bill became law.

"Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then," Obama wrote. "My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law."

Now, thanks to Brookings Institution scholar Benjamin Wittes, we learn exactly how the administration is interpreting that section of the law: It is using it to defend the indefinite detention of Musa'ab al-Madhwan, a Yemeni citizen who has been imprisoned at Guantánamo Bay, Cuba, for years.

"The government has filed its opposition to cert in the case of Al Madhwani v. Obama-a Guantanamo habeas case," Wittes wrote on his Lawfare blog. "Al Madhwani's cert petition seeks review of this DC Circuit opinion affirming his detention. That opinion, in turn, affirmed District Judge Thomas Hogan's earlier opinion. The government's argument is interesting because it explicitly invokes the new language in the NDAA."

In an interview, Wittes noted the irony of the administration using the legal provision it resisted in defending its arguments against  Madhwani now, but said the administration had been consistent in how it defines the application of the authority to detain prisoners indefinitely.

"The administration says the provision is unnecessary and redundant and then this shows up in their brief, but merely as support of their interpretation of the prior law. There's no hypocrisy here," Wittes said. "It would be weird of them not to cite an on-point federal statute that supports their argument."

Still, one of the supporters of the provision in Congress, Sen. John McCain (R-AZ), told The Cable Tuesday that the administration's embrace of his provision was disingenuous. "I guess it's a high form of flattery," McCain said.

Another sponsor of the provision, Sen. Carl Levin (D-MI), told The Cable Tuesday that although the administration strenuously opposed earlier versions of the provision, the administration didn't outright oppose the final version, despite the unenthusiastic signing statement. "I'm not at all surprised that they used a provision that they ultimately didn't oppose in their briefs," he said.