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Taliban Terrorist Transfer

June 4, 2014

Last weekend, President Obama transferred five high-threat Taliban terrorists out of Guantanamo in exchange for a U.S. soldier detained by the enemy in the Afghan theatre. The transfer raises many questions about who these terrorists are, the statutes President Obama disregarded in this action, and the administration’s claim that it did not negotiate with terrorists. The recidivism rate of transferred Guantanamo detainees is close to 30 percent.

Taliban terrorists

  • All five of the Taliban detainees were:
    • deemed “high risk” by Joint Task Force Guantanamo;
    • closely tied to al Qaeda prior to the September 11 attacks; and
    • in senior military or intelligence positions in the Taliban.
  • The United Nations suspects two of them of war crimes during Taliban rule of Afghanistan.
  • Their titles and associations alone belie any claim these terrorists are low-level or that we should otherwise be “glad to get rid of these five people,” as Majority Leader Reid said.
  • Mullah Mohammad Fazl, Taliban deputy minister of defense, commanded the main force fighting the coalition forces in Afghanistan. He is accused by the U.N. of slaughtering thousands of Afghan Shiites during Taliban rule.
  • Mullah Norullah Noori, senior Taliban military commander, also is wanted by the U.N. in connection with the mass murder of Shiites.
  • Mullah Khairullah Khairkhwa, former governor of Herat province. A U.S. federal court found he “repeatedly 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 U.S. coalition forces.”
  • Abdul Haq Wasiq, deputy chief of Taliban’s intelligence service, with extensive links to many of the Islamist terrorist and anti-coalition groups operating in Afghanistan.
  • Mohammad Nabi Omari, senior Taliban official, who similarly worked with many terrorist and opposition groups operating in Afghanistan.
  • As the vice chairman of the Senate Intelligence Committee and others have observed, these people were hand-picked by the Taliban as the five terrorists they wanted transferred out of custody in Guantanamo.


  • Secretary of Defense Chuck Hagel said, “we didn’t negotiate with terrorists” to complete this transfer. How is that the case?
    • Is it because the Taliban is not designated as a Foreign Terrorist Organization (unlike the Haqqani network)?
    • Is it because we acted through an intermediary to negotiate with the Taliban?
  • The recidivism rate for the mostly low and mid-level detainees who have been transferred from Guantanamo so far is 29 percent. Aren’t the odds unacceptably high that these five high-risk terrorists will return to the fight against the United States?
  • A Guantanamo detainee named Abdallah Salih al-Ajmi was transferred to Kuwait in 2005 with the promise that it would mitigate the risk of him returning to terrorist activity. In 2008 he exploded a truck bomb near an Iraqi army base, killing 13 Iraqi soldiers and himself. Is Qatar more capable than Kuwait of mitigating the risk that a transferred Guantanamo detainee may reengage in terrorist activity?

Ignoring Congress

  • Section 1035 of the fiscal year 2014 defense authorization act requires the secretary of defense to notify Congress no less than 30 days in advance of any transfer of a Guantanamo detainee out of U.S. custody. In President Obama’s words, “period, full stop” – there is no exception or waiver authority.
  • Section 8111 of the defense part (Division C) of the fiscal year 2014 omnibus appropriations act says no funds may be used to transfer a Guantanamo detainee in any way except in accordance with section 1035 of the fiscal year 2014 defense authorization act. It also has no exception or waiver authority.
  • When he was campaigning for president, Senator Obama said he would not “use signing statements to nullify or undermine congressional instructions as enacted into law.”
  • He also complained about the use of signing statements to “change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the president does not like.”
  • When President Obama signed the fiscal year 2014 defense authorization act into law, he issued a signing statement saying section 1035 “would violate constitutional separation of powers principles” in certain circumstances, and he would implement this provision in a manner that avoids a constitutional conflict.


  • Did President Obama rely upon his signing statement as authority to disregard the statutory requirement that Congress be notified no less than 30 days prior to the transfer of a detainee out of Guantanamo?
  • How does that comport with his campaign promise he would not use signing statements to nullify the congressional instructions of statutes he signed into law?
  • A spokesman for the National Security Council recently issued a statement interpreting the section 1035 requirement as not applying to this particular transfer. How is that the case when there is no exception to this clause’s application? Isn’t that a willful misinterpretation of the statute or use of a signing statement to change its meaning?
  • On the campaign trail in 2008, Senator Biden said “no president – no one is above the law.” How are President Obama’s actions not above the law?
  • National security adviser Susan Rice said essentially there was not enough time to notify Congress in advance of the terrorist transfer. How was there enough time to organize a Rose Garden ceremony but not sufficient time to follow the law?
  • On March 31, 2006, Senator Leahy complained of “a broad doctrine of presidential ‘inherent authority’ to ignore the laws passed by Congress when prosecuting the war on terror. In other words, the rule of law is suspended, and the president is above the law, for the uncertain and no doubt lengthy duration of the undefined war on terror.” Isn’t that exactly what happened here?
  • In 2008, then-Speaker Pelosi “reject[ed] the notion in his signing statement that he can pick and choose which provisions of this law to execute” and said that it is the president’s job, under the Constitution, “to faithfully execute the law – every part of it – and I expect him to do just that.” Why can President Obama choose which provisions of a law to carry out?
  • On the Senate floor on July 28, 2006, Senator Leahy complained about the use of “signing statements to proclaim which parts of the law the president will follow [and] which parts he will ignore.” Isn’t that what President Obama’s signing statement does with respect to the fiscal year 2014 defense authorization act? Doesn’t his disregard of section 1035 show his use of a signing statement to proclaim which part of a statute he will follow and which part he will ignore?

Laws signed by President Obama require him to notify Congress 30 days in advance of transferring a detainee out of Guantanamo. He has either willfully misinterpreted those laws as not applying to this situation, or simply disregarded them out of a yet-unexplained constitutional authority to choose which laws he will and will not follow. In this case, he did it to avoid scrutiny of his decision to negotiate with terrorists to release five high-level Taliban terrorists in exchange for a captured U.S. solider. The law required such a transfer to be scrutinized before it happened. Now it must come afterward, along with a review of President Obama’s blatant disregard of clear statutory requirements.