When any nation or organization wants to negotiate an end to hostilities, it has to be prepared to offer something substantial as a way to demonstrate good faith.  Almost by definition, their own side will object to the concession offered if it’s significant.  That will likely be the reaction to the Reuters report that the Obama administration is mulling over the idea of releasing one of the first detainees to enter the detention center at Guantanamo Bay in exchange for serious peace talks with the Taliban:

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.

Without a doubt, Fazl’s a pretty bad guy, and an indictment all on his own of the Taliban government the US deposed after the 9/11 attacks and the Taliban’s refusal to turn over al-Qaeda’s leadership.  People forget just how bad the Taliban was in its administration of Afghanistan following their overthrow of the post-Soviet government in Kabul, such as it was.  Iran can be described fairly as a twelfth-century tyranny with 20th-century technology, but the Taliban were an eighth-century tyranny with 19th-century technology at best.  If Fazl returned to the field — and he almost certainly would, absent a peace agreement — he could wreak a bloody havoc on Afghanistan once again, which is probably the main reason that the US has balked at returning him to Afghanistan.

However, it’s not just the Taliban that want him back.  The US-supported government in Kabul wants him and four other Afghani Taliban in Gitmo released into their custody, and have been requesting that since 2005.  Both the Bush and Obama administrations have resisted those demands, and Congress remains opposed on a bipartisan basis.  They see Fazl as an especially egregious case and a big danger if released; Reuters says that Fazl and the others would remain in detention, but that’s probably fantasy.  The Kabul government could try Fazl for the massacres, but they’d probably trade him in a peace agreement if they could get one that disarms the Taliban as part of a general amnesty.

According to public data, that looks like a decision for Kabul to make.  Unless the US has information that Fazl took part in terrorist operations against the US or have evidence that Fazl took part in Spann’s murder, the jurisdiction for Fazl’s crimes would be in Afghanistan, not the US or Gitmo.  Sending Fazl and his cohorts to Kabul in custody of the Karzai government would not constitute “negotiating with terrorists,” as one objection in the Reuters account is stated.  It would be negotiating with the sovereign government we support so that they can negotiate with the Taliban.

That’s not just a distinction without a difference, either.  Unlike al-Qaeda, which was always a foreign group transplanted into Afghanistan for strategic purposes, the Taliban represent — for better or worse — the Pashtuns in Afghanistan, and to a lesser extent in Pakistan.  The Pashtuns are one of the biggest tribes in the region, and the conflict between the Taliban and the Afghan government (and the Northern Alliance that preceded it) is as much about tribal supremacy as it is about religion, and perhaps more so.  In any post-war Afghanistan, the government will have to find a way to integrate the Pashtuns into the political life of the country without a resort to arms.  Over the last ten years, many efforts have been made to get the Pashtuns to abandon their Taliban leadership, but without much success, and in the long run, negotiation will be necessary to end the conflict.  Given the tribal map of Afghanistan, it’s obviously impossible for total victory through military conquest:

Pashtuns are the largest single tribal ethnicity in Afghanistan, and one of the largest in Pakistan as well at around 40%, with Tajiks, Hazaras, and Uzbeks following in order (aggregating in the white space in the north on this map).  The only hope of ending the war is to get Pashtuns to live with the other tribes of Afghanistan in peace, or outright annihilation, which is not just impossible but unthinkable.  Peace will require negotiation, and negotiation will require trade-offs, sometimes literally, perhaps such as Fazl for a truce and serious talks.  Fazl might be a high price to pay, but in the end it will be the Afghan government who will pay it, and who should have jurisdiction to make that decision — unless the US has evidence that Fazl has conducted terrorist operations against the US outside of the scope of our invasion in 2001.