June 9, 2014

Facing an unexpected uproar over his decision to release five brutal Taliban leaders in exchange for Sgt. Bowe Bergdahl, President Obama has tried to wrap himself in the mantle of George Washington, Abraham Lincoln and Franklin Roosevelt.

Yes, it is “absolutely” possible the men he released could return to the battlefield, the president recently declared, but “this is what happens at the end of wars.” In freeing these Taliban leaders, Obama claims he was doing nothing different from what his predecessors did after the Revolutionary War, the Civil War and World War II.

One problem with that, Mr. President: The prisoners released in those conflicts did not return to the battlefield, because the enemy had surrendered.

The Taliban and al-Qaeda have not surrendered.

Obama administration officials are arguing that the Taliban release was inevitable, because the war in Afghanistan is ending. But the coming withdrawal of U.S. forces from Afghanistan does not end the state of war between the United States and the Taliban. There are only three ways that state of war can end: 1) we reach a peace accord with the Taliban; 2) the Taliban surrenders; or 3) the United States surrenders.

The first two are not happening anytime soon. Taliban supreme leader Mullah Omar declared the release of his five commanders a “great victory.” Enemy forces don’t tend to capitulate after a great victory. And a Taliban spokesman declared last week that the prisoner exchange “won’t help the peace process in any way, because we don’t believe in the peace process.”

So unless Obama capitulates, there is no reason under the laws of war why the president must release Taliban prisoners held at Guantanamo Bay, Cuba. These detainees have been approved by the Obama administration for indefinite detention. The president’s authority to hold Taliban detainees indefinitely is not extinguished when U.S. forces withdraw. The only thing that would require the United States to hand over Taliban prisoners would be if Obama issues a declaration that we have no further conflict with the Taliban. That would end his authority under the Authorization for Use of Military Force (AUMF) to continue holding Taliban prisoners.

Obama may be seriously considering doing just that. In his speech at the National Defense University last year, Obama declared: “The AUMF is now nearly 12 years old. The Afghan war is coming to an end. . . . Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states.” Therefore, Obama said, the time has come “to refine, and ultimately repeal, the AUMF’s mandate.”

One way he could “refine” the AUMF’s mandate is by declaring an end to our conflict with the Taliban when U.S. forces withdraw. It would be dangerously shortsighted, and perilously bad American policy, for the president to pretend that the armed conflict with the Taliban is over, just because that is the state of affairs he wishes for.

If Obama declares an end to our conflict with the Taliban, the United States would be limited to non-military actions to deal with the Taliban — including military support for the Afghan government, covert action, restrictions on financial transactions, criminal enforcement and diplomatic actions.

This makes a mockery of claims by Secretary of State John F. Kerry this weekend that if released Taliban leaders go back to the battlefield, they could be targeted and killed by the United States. Our authority to target Taliban leaders today comes from the AUMF.

Obama clearly sees Afghanistan through the prism of Vietnam. Yet even in that war, the United States signed the Paris Peace Accords, in which both sides agreed to a cease-fire, the withdrawal of U.S. forces and an exchange of prisoners. In Afghanistan, such an accord with the Taliban between now and 2016 is highly unlikely. So any actions Obama takes to “end” the conflict with the Taliban will be unilateral.

Obama will no doubt argue that walking off the battlefield before the enemy is defeated is different from signing a surrender document on the deck of the USS Missouri. While that may be technically true, it is a distinction without a difference. If you throw in the towel, and quit fighting before the other guy does, you lose.

No matter how Obama dressed it up, in the absence of a peace agreement or capitulation by the Taliban, a unilateral declaration ending our mandate to fight the Taliban under the AUMF and returning all Taliban prisoners would be an act of surrender.

It may be an action that Obama is preparing to take.

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