By Mark Hosenball, Missy Ryan and Warren Strobel
WASHINGTON (Reuters) - The Obama administration is considering transferring to Afghan custody a senior Taliban official suspected of major human rights abuses as part of a long-shot bid to improve the prospects of a peace deal in Afghanistan, Reuters has learned.
The potential hand-over of Mohammed Fazl, a 'high-risk detainee' held at the Guantanamo Bay military prison since early 2002, has set off alarms on Capitol Hill and among some U.S. intelligence officials.
As a senior commander of the Taliban army, Fazl is alleged to be responsible for the killing of thousands of Afghanistan's minority Shi'ite Muslims between 1998 and 2001.
According to U.S. military documents made public by WikiLeaks, he was also on the scene of a November 2001 prison riot that killed CIA operative Johnny Micheal Spann, the first American who died in combat in the Afghan war. There is no evidence, however, that Fazl played any direct role in Spann's death.
Senior U.S. officials have said their 10-month-long effort to set up substantive negotiations between the weak government of Afghan President Hamid Karzai and the Taliban has reached a make-or-break moment. Reuters reported earlier this month that they are proposing an exchange of "confidence-building measures," including the transfer of five detainees from Guantanamo and the establishment of a Taliban office outside of Afghanistan.
Now Reuters has learned from U.S. government sources the identity of one of the five detainees in question.
The detainees, the officials emphasized, would not be set free, but remain in some sort of further custody. It is unclear precisely what conditions they would be held under.
In response to inquiries by Reuters, a senior administration official said that the release of Fazl and four other Taliban members had been requested by the Afghan government and Taliban representatives as far back as 2005.
The debate surrounding the White House's consideration of high-profile prisoners such as Fazl illustrates the delicate course it must tread both at home and abroad as it seeks to move the nascent peace process ahead.
One U.S. intelligence official said there had been intense bipartisan opposition in Congress to the proposed transfer.
"I can tell you that the hair on the back of my neck went up when they walked in with this a month ago, and there's been very, very strong letters fired off to the administration," the official said on condition of anonymity.
The senior administration official confirmed that the White House has received letters from lawmakers on the issue. "We will not characterize classified Congressional correspondence, but what is clear is the President's order to us to continue to discuss these important matters with Congress," the official said.
Even supporters of a controversial deal with the Taliban - a fundamentalist group that refers to Americans as infidels and which is still killing U.S., NATO and Afghan soldiers on the battlefield - say the odds of striking an accord are slim.
Critics of Obama's peace initiative remain deeply skeptical of the Taliban's willingness to negotiate, given that the West's intent to pull out most troops after 2014 could give insurgents a chance to reclaim lost territory or push the weak Kabul government toward collapse.
The politically charged nature of the initiative was on display this month when the Karzai government angrily recalled its ambassador from Doha and complained Kabul was being cut out of U.S.-led efforts to establish a Taliban office in Qatar.
U.S. officials appear to have smoothed things over with Karzai since then. Karzai's High Peace Council is signaling it would accept a liaison office for the Taliban office in Qatar - but also warning foreign powers that they cannot keep the Afghan government on the margins.
The detainee transfer may be even more politically explosive for the White House. In discussing the proposal, U.S. officials have stressed the move would be a 'national decision' made in consultation with the U.S. Congress.
Obama is expected to soon sign into law a defense authorization bill whose provisions would broaden the military's power over terrorist detainees and require the Pentagon to certify in most cases that certain security conditions will be met before Guantanamo prisoners can be sent home.
The mere idea of such a transfer is already raising hackles on Capitol Hill, where one key senator last week cautioned the administration against negotiating with "terrorists."
Senator Saxby Chambliss, the top Republican on the Senate Intelligence Committee, said such detainees would "likely continue to pose a threat to the United States" even once they were transferred.
In February, the Afghan High Peace Council named a half-dozen it wanted released as a goodwill gesture. The list included Fazl; senior Taliban military commander Noorullah Noori; former deputy intelligence minister Abdul Haq Wasiq; and Khairullah Khairkhwa, a former interior minister.
All but Khairkhwa were sent to Guantanamo on January 11, 2002, according to the military documents, meaning they were among the first prisoners sent there.
Bruce Riedel, a former CIA and White House official, said Fazl was alleged to have been involved in 'very ugly' violence against Shi'ites, including members of the Hazara ethnic minority, beginning in the late 1990s, and the deaths of Iranian diplomats and journalists at the Iranian consulate in the northern Afghan city of Mazar-i-Sharif in 1998.
Michael Semple, a former UN official with more than two decades of experience in Afghanistan, said Fazl commanded thousands of Taliban soldiers at a time when its army carried out massacres of Shi'ites. "If you're head of an army that carries out a massacre, even if you're not actually there, you are implicated by virtue of command and control responsibility," he said.
He added: "However it does not serve the interests of justice selectively to hold Taliban to account, while so many other figures accused of past crimes are happily reintegrated in Kabul."
Some U.S. military documents - select documents have been released, others were leaked - indicate that Fazl denied being a senior Taliban official and says he only commanded 50 or 60 men. But the overall picture of his role is unclear from the documents which have become public.
Richard Kammen is an Indiana lawyer who has nominally represented Fazl; the detainee did not want an attorney.
"Based upon the public information with which I'm familiar, it would appear his role in things back in 2001 has been significantly exaggerated by the government," Kammen said.
According to the documents, Fazl and Noori surrendered to Abdul Rashid Dostum, now Afghanistan's army chief of staff but at the time a powerful warlord battling against the Taliban, in northern Afghanistan in November 2001.
While the men were being held at the historic Qala-i-Jani fortress in Mazar-i-Sharif, Taliban prisoners revolted against their captors from the Northern Alliance, the anti-Taliban coalition.
"Dostum brought (Fazl and Noori) to the bunker to ask the prisoners to surrender; detainee and (Noori) refused," the detainee assessment from a 2008 document read.
Spann, a one-time Marine captain who was sent to Afghanistan as a CIA operative in the fall of 2001, was trying to locate al Qaeda operatives at the Mazar fortress among a large group of Taliban soldiers who had surrendered, according to the CIA and media reports at the time. When the Taliban prisoners began to riot - many of them were apparently armed - Spann was surrounded and killed. After a bloody, multi-day battle his body was later found booby-trapped.
Even a loose association between Fazl and Spann's death - despite the fact there is nothing to suggest he was directly involved - is likely to increase the temperature of the debate in Washington.
What could be problematic for some Afghans is Fazl's identification with the killing of civilians in central and northern Afghanistan.
"The composition and timing of any release has got to pay attention to Northern Alliance concerns," Semple said.
Buy-in from supporters of that alliance - and from those wary of a resurgent Taliban - will be key in making a peace deal stick, if one can be had.
Despite the congressional concerns that released Taliban will return to the battlefield, Semple said it was unlikely even prisoners like Fazl - who truly was a significant military figure for the Taliban - would alter that equation.
"These people are not going to make a real contribution to the Taliban war effort even if they are able to go over to Quetta and rejoin the fight. It's not risky in battlefield terms; it's only risky in U.S. political terms."
(Additional reporting by Tabassum Zakaria, Patrick Worsnip and Jane Sutton; editing by Claudia Parsons)