Biden unlikely to formally recognize Taliban government

They’d promised to be “inclusive.” But as the Taliban unveiled their new caretaker government in Afghanistan this week — an all-male roster of hardline clerics, veteran fighters and at least one figure sought by the FBI — they met howls of protest in Washington.

Sen. Lindsey Graham (R-S.C.) called the choices a “lineup of thugs and butchers.” A senior Biden administration official bemoaned that the new administration included “individuals on terrorist lists.”

Still, through edicts and gunfire, the Islamist militia is cementing its control over Afghanistan, raising questions about whether the United States and other nations should formally recognize its rule. Such recognition would give a Taliban government access to everything from billions in frozen assets, to a seat at the United Nations, to diplomatic immunity for their representatives when they travel abroad.

Any U.S. recognition of Taliban rule is unlikely in the near term — it would infuriate Congress and damage the White House politically. The administration has, however, been dangling the prospect of recognition in hopes of shaping the new Afghan regime’s behavior.

But the understandable U.S. reluctance to recognize the new government could spawn confusion in the years ahead everywhere from courtrooms to summit corridors, not to mention complicate dealings with a country whose population relies heavily on foreign aid. Over time, as it has with some other countries, the U.S. might find itself tacitly recognizing a Taliban government even if it never explicitly does so.

“No one is arguing that the state of Afghanistan has ceased to exist, and the rest of the world can’t avoid interacting with it,” said Scott Anderson, a former State Department lawyer who has studied the topic of government recognition. “At some point, people are going to have to acknowledge some entity as having the capacity to speak for Afghanistan in exercising its rights or obligations.”

‘Reign of terror’

Already, the White House is struggling to balance the necessity of dealing with Kabul’s new rulers even as Taliban foot-soldiers beat protesters and execute perceived adversaries. Just this week, the White House drew criticism after one of its spokespersons described the Taliban as “businesslike” and “professional” during negotiations to permit foreign nationals and Afghans with proper papers to leave the country.

But diplomatic niceties are one thing; diplomatic recognition is another. At the moment, Biden administration officials say they are so focused on immediate crises, especially the ongoing evacuations, that there’s little bandwidth to devote to such a high-level policy question. And the reality is that whoever is in the White House could take years, if forever, to decide on the recognition question.

“It’s not really an active, current discussion,” a senior administration official told POLITICO. President Joe Biden himself has said such recognition is a “long way off.”

The lack of a recognized government in Kabul is nonetheless already creating headaches beyond the White House.

For instance, as the Taliban swept back to power in Afghanistan last month, Hogan Lovells, a legal firm, realized it had a problem: Its client in a long-running case no longer existed. That client was the now-vanquished government of Afghanistan, on whose soil 9/11 mastermind Osama bin Laden was once based. That government was being sued by a Sept. 11 family.

At the law firm’s request, a judge in late August granted a 60-day stay in the case. But, for practical and political reasons, it will likely take much longer than that for there to be legal clarity on who now counts as the defendant.

Some of Biden’s top aides are linking the prospect of future recognition of a Taliban government to the Islamist militia’s behavior. That includes holding the Taliban to long-term promises to respect human rights, especially for women and girls, and to prevent terrorist groups like al Qaeda from using Afghanistan as a haven.

“The Taliban says it seeks international legitimacy and international support. And that will depend entirely on what it does, not just on what it says,” Secretary of State Antony Blinken told TOLO News when asked this week about recognition. “And the trajectory of its relationship with us and with the rest of the world will depend on its actions.”

Deciding on recognition is largely up to the executive branch. But any possibility of recognizing a Taliban government is likely to meet staunch opposition from some U.S. lawmakers.

“I will oppose any and all efforts by the Biden administration to legitimize the Afghan Taliban as the government of Afghanistan,” Graham said in a statement Tuesday. “They are a terrorist organization. Any country who provides them legitimacy is setting in motion a reign of terror for the people of Afghanistan and the spread of the terror threat throughout the world.”

Meantime, the United States has little choice but to deal with the Taliban.

At the moment, the U.S. — and dozens of other countries, according to one joint statement — is engaging the militants to ensure that they keep their pledges to allow foreign nationals and Afghans with travel permits to leave Afghanistan. On Thursday, the Taliban let some 200 people fly out.

In another nod to practical considerations, U.S. military officials have said they may cooperate with the Taliban to battle a common foe, the ISIS-K terrorist group. The U.S. has accused ISIS-K of carrying out a bombing that killed 13 American troops as they helped evacuate people from Afghanistan last month.

As Afghanistan’s economic and humanitarian condition worsens in the wake of the Taliban takeover, the United States and other countries will have to make difficult choices about how much, if any, aid to give to the country without somehow seeming to legitimate the Taliban.

Taliban representatives have called on other countries to recognize their right to rule. When it comes to the United States in particular, one militant is reported to have said: “The Islamic Emirate is keen to maintain good diplomatic, economic and trade relations with America on the basis of mutual respect and equality.”

The gray zone

Since Kabul fell last month, no government has formally recognized the new Taliban regime in Afghanistan. But there’s precedent and parallels for doing so, and the murky nature of both international and domestic law on the issue means there’s room for governments to engage the regime in ways that all but give recognition.

Take Venezuela. In early 2019, then-President Donald Trump announced he no longer recognized autocrat Nicolás Maduro as the Latin American country’s legitimate leader. Instead, the U.S. and dozens of other countries decided to recognize Venezuelan opposition leader Juan Guaidó as the country’s interim president. Guaidó’s aides gained access to Venezuelan embassies and some Venezuelan government bank accounts, while Guaidó met Trump at the White House and attended his 2020 State of the Union speech.

But in the years since, the United States has found itself having to deal with the Maduro regime anyway because it controls the territory, and countries like Russia and Iran have stuck by the dictator.

Iran itself is a good example. For years after Islamists loyal to Ayatollah Ruhollah Khomeini seized control of the country following its 1979 revolution, the United States would not explicitly recognize them as Iran’s global representatives. But fairly soon America found itself tacitly doing so, such as when it entered into the 1981 Algiers Accords to help free U.S. hostages held in Iran or pursued cases at a claims tribunal set up to resolve disputes between the two governments.

In the late 1980s, the United States consented to the idea that an institution belonging to the Khomeini regime could represent itself in a court case, another sign of tacit recognition. (When asked this week, a State Department spokesperson said the U.S. does recognize the current regime as Iran’s government.) Still, despite having plenty of contacts in the years since the revolution — including negotiations over Iran’s nuclear program — the U.S. and Iran technically do not have diplomatic relations.

In the mid-1990s to early 2000s, when the Taliban last ruled Afghanistan before the U.S. ousted them in a post-9/11 invasion, the regime was recognized by Saudi Arabia, the United Arab Emirates and Pakistan. Washington had contacts with the Taliban, but didn’t recognize their claim to be Afghanistan’s legitimate representatives.

Back then, the Taliban — a movement that emerged in part from Islamist seminaries in the region — were far less sophisticated about international affairs. Still, even then they sought global recognition, according to scholars who’ve studied the group. The problem was that their hardline views, such as opposing education for girls, put them at odds with international human rights and legal obligations, undermining their efforts to engage in diplomacy and get out from under economic sanctions.

The Taliban of the 1990s tried, for instance, to represent Afghanistan at the United Nations, but they couldn’t get credentials. Instead, the United Nations continued to seat the representative of former Afghan President Burhanuddin Rabbani. (At the moment, Afghanistan continues to be represented at the United Nations by the ambassador of the fallen government.)

Today’s Taliban are more savvy about the global community, and they’ve made promises about respecting human rights and otherwise being a responsible actor. On the ground, however, there are numerous reports of Taliban fighters engaging in reprisal killings, once again restricting women’s rights and making other alarming moves.

There already are signs that some countries may be willing to look the other way: China, Russia and Iran, for example, kept open their embassies in Afghanistan during the Taliban takeover, while the United States quit its facility in Kabul, moving its Afghan diplomatic mission to Qatar instead.

It’s likely this will be the U.S. modus operandi for a long time: having a diplomatic office dedicated to Afghanistan that isn’t at full strength. If the Taliban retain control for the foreseeable future, it’s unlikely the United States will name an ambassador to Afghanistan anytime soon, because sending an ambassador generally requires consent from a recognized government.

Sarah Netburn, the magistrate judge in the Sept. 11 lawsuit involving Afghanistan, seemed to recognize the thorny legal and political questions that lie ahead as she mulled Hogan Lovells’ request for a stay in the case.

She noted that the plaintiff — Lynn Faulkner, an Ohio man whose wife died in the New York attacks — offered no objection to taking a time out.

“The parties have made the question of who governed Afghanistan at key moments in recent history a central factual dispute” in the case, the judge wrote. “Judicial pronouncements on this question could have diplomatic and political repercussions at a time when the political situation in that nation is already volatile.”

Josh Gerstein contributed to this story.