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They may not consider him to have served in the armed forces of a foreign state, simply because the US did not recognize the Taliban as a government (and of course, it didn't recognize al Qaeda either). So what we have may just be the equivalent of some dude kicking a cop, but doing it on foreign soil.
As for Tony's comment... I think a lot of it has to do with religion and the ridiculous ideals which it promotes. Think about how many deaths religion has been responsible for... and then think about why he joined up with al Qaeda in the first place.
I'm not saying Islam is worse than any religion, nor am I saying it's any better. Just something to think about - religion is responsible for the 9/11 catastrophe and millions of other deaths over the course of human history. Pretty awful...
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