A Possible U.S. and Taliban Peace?
With the district court granting the government’s motion to dismiss in Al Maqaleh, habeas continues to be unavailable to the detainees. But besides litigation there are other political factors that may alter U.S. detention policy and help determine what will happen to these men.
One such factor is whether the U.S is able to improve its relationship with the Taliban. Some Taliban figures have indicated interest in a continued U.S. presence in Afghanistan, which may conceivably allow the U.S. to continue some sort of detention program. In September, 2012 the Royal United Service Institute (a British defense and security think tank) published a briefing that interviewed four senior Taliban officials about a potential ceasefire with the U.S. These officials are reportedly part of the “Quetta Shura Taliban” led by Mullah Mohammed Omar. In the Institute’s briefing, the Taliban officials discussed the idea of allowing a “U.S. stabilization force” in Afghanistan until 2024. The officials will allow an American presence only if “U.S. presence contributed to Afghan security and did not constrain Afghan independence and Islamic Jurisprudence.” This continued U.S. presence would operate out of five bases: “Kandahar, Heart, Jalalabad, Mazar-el-Sharif and Kabul.” These Taliban spokesmen have said they are also willing to “renounce Al-Qaeda if this call came from Mullah Omar” after a ceasefire. Unlikely as it may seem, the U.S. could potentially use one of the five bases the same way it uses Bagram, to hold foreign fighters who might pose a “security threat” to Afghanistan and the U.S.
However, this arrangement may only be speculation for a number of reasons. First, this agreement, if possible at all, requires concessions from the U.S. to the Taliban. The Taliban may demand “political recognition” and the opportunity to “negotiate something substantial” with the U.S. in exchange for the renunciation of Al Qaeda. The U.S. may not be willing to agree to all these demands. Second, “no Taliban leader has publically endorsed the ceasefire,” so the U.S. doesn’t know if there is an overall consensus on this potential deal. There seems to be an internal divide within the Taliban, with many not willing to renounce Al Qaeda or to accept the Afghan Constitution, and this division hurts the chances for real peace talks.
Even American military and civilian officials who once thought a peace with the Taliban was the only way to get stability in Afghanistan believe peace talks are unrealistic at this point. They are “instead setting the stage” to have peace talks between the Afghan government and the Taliban after the U.S. and NATO forces have left. But other American officials feel the U.S. should not completely give up on negotiating peace with the Taliban before 2014. Although no negotiations are happening at this point, there is still communication between the Taliban, U.S., Afghanistan and Pakistan to determine if anything can be worked out. If an agreement is indeed reached with the Taliban while the U.S. is present, it will raise the question of whether the U.S. can still have a facility, where habeas does not apply, after a ceasefire is reached. If the war with the Taliban is over, then the “practical obstacles” factor in Boumediene may be affected since the base may not be considered to be in an “active warzone” that can lead to logistical problems for trial. This issue may lead to future litigation.
In short we have no clear answer about what will happen to the fifty foreign detainees or any others the U.S. may capture later. We do know that for now habeas still does not apply to the detainees since the case in the district court was decided against them. There remains a chance of appeal but the appeal does not look promising. Perhaps the most likely factor to have an effect soon is the involvement of Pakistan for its citizens, but at least several foreign detainees remain in Bagram that are not Pakistani. And finally U.S. relations and agreements with the Afghan government and possibly the Taliban may provide a clear path for the U.S. to take in this matter or lead to even more confusion. For now all we know is that the foreign detainees in Bagram will be remaining in U.S. custody for the time being.
 Michael Semple et al., Taliban Perspectives on Reconciliation, Royal United Services Institute 1 (Sept. 2012), available at http://www.rusi.org/downloads/assets/Taliban_Perspectives_on_Reconciliation.pdf.
 Id. at 12.
 Id. at 4.
 Id. at 12.
 Id. at 5.
 Id.at 7.
 Id. at 8.
 Peace Talks with the Taliban, N.Y. Times (Oct. 4, 2012), http://www.nytimes.com/2012/10/05/opinion/peace-talks-with-the-taliban.html?hp.
 Byron Zinonos, When Are Afghan Detainees Captured After March 9th, 2012 Being Transferred?, (Forthcoming).