The 15th paragraph of this story on CIA’s continuing efforts to water down the Senate Intelligence Committee’s torture report reads,

The CIA’s current director, John Brennan, was a senior agency official when the harshest CIA tactics were in use. Officials said that in closed-door meetings with Congress, he complained the Senate report contained major inaccuracies.

It is utterly predictable that Brennan, who refused to read the report before he got confirmed, would, after he was confirmed, decide it was inaccurate. See here, here, here, here, here, here, and here for just some of the bread crumbs this would happen.

Since I was right about John Brennan being completely untrustworthy about bringing an open mind to the evidence presented in the Torture Report, let me make another prediction based on this detail.

Committee aides said the panel hoped to finish work on an updated version of the report, taking note of CIA comments, by the end of the year. The committee could then vote to request declassification, which would allow the public to see the report, or at least parts of it.

What’s going to happen is the SSCI will water down the report, ignoring the clear implications of the evidence, in hopes of getting support for declassification. The Republicans on the committee, at least, still won’t vote to declassify it. Some section of the watered-down report will be released. And the historical record on torture will not reflect the clear evidence in the documentary record.

Dianne Feinstein could, of course, move to declassify the report in its current state.

But she won’t do that, and John Brennan knows it. You see, he knows DiFi wants to be loved by the spooks she oversees, and they could care less what she thinks of them, so long as they continue to hide the true nature of their organizations. And her desire to be loved by those she oversees makes her an easy mark.

Amnesty International and Human Rights Watch released reports on US drone killings today. For the moment, I’m going to outsource reading the reports to Sarah Knuckey’s excellent post.

Both reports (per Knuckey) point to individual drone strikes on civilians that may or probably violate international law.

Specific US strikes killed civilians in violation of the law and US policy.  These are the first major reports by each organization detailing field investigations into specific strikes.  HRW reviewed six strikes in Yemen (occurring between December 2009 and April 2013). HRW concluded that two of the strikes violated international law (pp. 54, 67), four may have (pp. 30, 39, 43, 60), and none of the six appeared to have complied with Obama’s May 2013 Presidential Policy Guidance (p. 89).  AI reviewed all 45 reported Pakistan strikes between January 2012-August 2013, and investigated nine in detail.  AI’s legal findings include that “evidence indicates” that an October 2012 strike unlawfully killed a grandmother and injured eight children (p. 23), and AI had “serious concerns” that a July 2012 strike that killed 18 and injured 22 (p. 24) may have been a war crime or extrajudicial execution (p. 27).  AI also investigated a number of strikes on apparent rescuers (those who came to the scene of a first strike to help the wounded), which it concluded may have been illegal (pp. 28-30).  Neither report seeks to assess the total number or rate of civilian casualties for all strikes.

[snip]

Investigations and accountability obligations. AI states that the US has legal obligations to investigate any cases where there are “reasonable grounds to indicate that unlawful killings have occurred,” and to prosecute, and remedy where appropriate (pp. 35-37).  HRW similarly states that the US has a duty to investigate violations of the laws of war, and that government secrecy effectively denies victims’ right to redress (p. 87).  Both reports also state the US should provide compensation or condolence payments for any civilian harm, but that neither organization is aware of the US having done this (AI, p. 39; HRW, p. 88).

This documentation of civilian casualties, of course, provides further evidence Dianne Feinstein and Mike Rogers’ claims about civilian casualties are false.

But we knew that.

Which means, in addition to the fact that we’re violating international law with some of our drone killings, we also are seeing a recurrent trend.

Even the CIA’s own lawyer agreed that CIA didn’t properly inform Congress, including the Intelligence Committees, about torture.

We’re learning that vast parts of the NSA’s spying — including spying that collects US person data — remains largely hidden from the Intelligence Committees.

And we have yet more proof they have been misinformed about drone killings.

Is there some dubiously legal program the Intelligence Community has fully informed Congress on?

Today marks the third time that I have used this photo that remarkably still resides on ISAFMedia’s Flickr photostream. The caption, in full, as it has always been carried by ISAFMedia:

CAMP DARULAMAN, Afghanistan – Brig. Gen. Saffiullah, Afghan National Army Military Police Brigade commander, holds a certificate presented by Vice Adm. Robert Harward, Joint Task Force 435 commander. The certificate was presented during a ceremony here April 5 in front of an ANA Military Police brigade. The brigade will complete the extensive training program prior to their assumption of detention facility security operations at the Detention Facility in Parwan. The brigade already conducts detention and corrections operations at the Afghan National Detention Facility in Pol-e-Charkhi. The event was another step toward the transition of the detention facility from the United States to the Afghan government. (Photo by U.S. Air Force 1st Lt. Joost Verduyn)

The date of April 5 on the photo refers to the year 2010. Of particular importance today is the bit where, on that date, the caption states that the Afghan National Army (after training by Robert Harward’s JSOC team) was “already” in charge of the Afghan prison facility at Pol-e-Charkhi. That prison is in Kabul. And that documentation of US-trained personnel controlling that prison is very important for this story published yesterday by the Daily Mail:

The Mail on Sunday has delivered a decisive blow against the creeping new culture of ‘secret justice’ after forcing the disclosure of a classified High Court judgment about torture in Afghanistan.

After a ten-month legal battle, we can at last reveal horrifying allegations over the treatment of prisoners captured by British forces in Afghanistan – evidence the Ministry of Defence wanted to keep secret.

More details from the article:

We can reveal the secret ruling concerns a supposed Taliban leader, described only as Detainee 806.

When he was held by UK troops in January 2010, there was already a moratorium banning the transfer of prisoners to the NDS in Kabul, because its interrogation centre there – codenamed Department 17 – had gained a sinister reputation for torture and British forces found it impossible to gain access.

The prisoner at the heart of this particular case pursued by the Daily Mail was arrested in January of 2010 and sent, against normal British procedures, to the Kabul prison, where he was hidden from British personnel for about a month while he was tortured:

But as the judgment now reveals, Dr Saleh’s promises proved worthless. Once in Kabul, Detainee 806 ‘disappeared’ for a month. When he did finally meet two British Army personnel, he told them he had been beaten with steel rods about his legs and feet, punched in the head, torso, arms and testicles, and deprived of sleep for days.

If US-trained personnel were “already” in control of Pol-e-Charkhi in early April of 2010, it’s hard to imagine they weren’t in control in the January to February time frame when this torture took place. And it took place under the rubric of the multicolor certificate issued by Robert Harward.

It should be noted here that the bulk of the allegations of torture are against the Afghan National Directorate of Security, or NDS, which is Afghanistan’s intelligence force. Those trained by Harward’s group are in the Afghan National Army. But the claim from ISAF is that the ANA Military Police are in charge of the facility (it has to be the same facility given the volume of prisoners passing through) where the NDS is accused of carrying out the torture when conducting interrogations.

Note that British troops had stopped sending prisoners to this prison by January of 2010, but as Marcy pointed out, the US did not stop until September of 2011. That was an especially important period for the prison, too. The US “surge”, relying on Petraeus’ COIN strategy of night raids, was generating huge numbers of prisoners at the time, with many sent to this very prison:

But with U.S. Special Operations Forces capturing scores of prisoners each week in aggressive nighttime raids, the United States for now must choose between releasing many prisoners after a few hours and handing over others to Afghan authorities, despite what current and former Afghan officials say are real reasons for concern about the security and effectiveness of Pol-e-Charki.

Of the 3,000 people detained by the coalition between August and January, 32 percent were transferred to Afghan authorities for detention in facilities including Pol-e-Charki, and 4 percent went to the U.S.-run prison. More than half were released in the initial screening period.

So while the Daily Mail case is important in exposing how British authorities tried to hide evidence of one prisoner being sent for torture, we shouldn’t lose sight of how the US sent thousands for torture, under the “protection” of military police we trained, during the same period.

Oh, and if that isn’t horrifying enough, that prison was also where the US sent 250 prisoners released from Guantanamo between 2007 and the time when this Adam Serwer article was published in Setember of 2009.

At the core of the expanding dragnet approved in secret by the FISA Court, Eric Lichtblau explained, is the application of “special needs” to “track” terrorists.

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. [my emphasis]

That’s actually not entirely secret. We see the beginnings of the process in the 2002 In Re Sealed Case decision by the FISC Court of Review, which thwarted FISA Court Chief Judge Royce Lamberth’s attempt to limit how much FISA information got shared for criminal prosecutions. In approving the “significant purpose” language passed in the PATRIOT Act which made it far easier for the government to use FISA information to justify criminal investigations, the decision pointed to the post-9/11 threat of terrorism to justify FISA as a special needs program (though as I lay out in this post, they also pointed to the judicial review and specificity of FISA to deem it constitutional, which should have presented problems for the dragnet programs that followed).

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable. [my emphasis]

Even in one of the only two FISA opinions (this from the Court of Review) that we’ve seen, then, the courts used the urgent threat of terrorism post-9/11 to justify searches that they found to be very close constitutional questions.

Terrorism was “the most serious threat” our country faces, the argument went, so this seeming violation of the Fourth Amendment was nevertheless reasonable.

Or at least close, a per curium panel including longtime FISA foe Laurence Silberman argued.

And in fact, this argument has always been built into the larger dragnet programs. Jack Goldsmith’s 2004 memo on the illegal program describes how it is premised on intelligence — gathered largely from interrogations of al Qaeda operatives — showing al Qaeda wants to attack in the United States.

As explained in more detail below, since the inception of [the program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to have, multiple redundant plans for executing further attacks within the United States. These strategies are at various stages of planning and execution, and some have been disrupted. They include plans for [~3 lines of scary threats] After reviewing each of the proposed [program] reauthorizations, this Office has advised you that the proposed reauthorization would satisfy relevant constitutional standards of reasonableness under the Fourth Amendment, [my emphasis]

And the Combined IG Report on Cheney’s illegal program reveals that before each Presidential Authorization, the CIA would put together a “scary memo” that the Director of CIA would then certify presented a sufficiently grave threat to justify reauthorizing the illegal wiretap program.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to’ undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. [my emphasis]

The job of writing the scary memos moved to the Terrorist Threat Integration Center in 2003, then to the Office of Director of National Intelligence in 2005.

Responsibility for drafting the threat assessment memoranda was transferred from the CIA to the newly established Terrorist Threat Integration Center (TTIC) in May 2003. This responsibility subsequently was retained by TTIC’s successor organization, the NCTC. The DCI continued to sign the threat assessment memoranda through April 2005.

[snip]

Each threat assessment was designed to set forth the DNI’s view regarding the current threat of an al-Qa’ida attack against the United States and to provide the DNI’s recommendation whether to renew the PSP. NCTC personnel involved in preparing the threat assessments told the ODNI OIG that the danger of a terrorist attack described in the threat assessments was sobering and “scary,” resulting in the threat assessments becoming known by ODNI and IC personnel involved in the PSP as the “scary memos.” During interviews, ODNI personnel said they were aware the threat assessments were relied upon by DOJ and White House personnel as the basis for continuing the PSP, and understood that if a threat assessment identified a threat against the United States the PSP was likely to be renewed. [my emphasis]

It’s fairly clear that the folks who put together these “scary memos” knew that they had to show a sufficient threat to justify the illegal program.

Just as a reminder, the guy who headed up this process from 2003 to 2005 (including during the period Goldsmith wrote his memo, and the period when FISC first approved using Pen Register/Trap and Trace orders to conduct a dragnet on Internet metadata) is a guy by the name of John Brennan.

But don’t worry. He was just following orders.

I fulfilled all my responsibilities at NCTC that I was asked to fulfill.

John Brennan’s role in producing the “scary memos” — and therefore providing the rationale that justified at least the first of these “special needs” decisions authorizing dragnet collection — is all the more significant given the admission he made earlier this year.

Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives.  Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?

Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.

Burr: I said I wasn’t clear whether I understood, whether whether I was clear.

Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.

Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.

Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation. [my emphasis]

Brennan admits that in affirmations to the FISC relating to the continuation of “certain programs” — that is, the “scary memos” — he relied on information from the CIA’s torture program.

The one that was designed to elicit false confessions from the start.

John Brennan’s admission sure seems to indicate that that original dragnet opinion, the one the others have built on, relies on the unreliable information elicited by CIA torture.

No wonder the Administration is in no rush to declassify the Senate Intelligence Committee’s torture report showing how unreliable this program was.

After yesterday’s Privacy and Civil Liberties Oversight Board meeting, torture memo lawyer Steven Bradbury (who himself relied on tortured information to fulfill all the responsibilities he was asked to fulfill) responded to former FISA Judge James Robertson’s insistence that FISC needed an adversarial process by warning about all the secrets that get told to FISC.

Steven Bradbury, a former top Bush administration lawyer who played a central role in national security decisions, questioned whether Robertson’s call for a legal adversary inside the FISA court process could work because of strict limits on those with access to information about the top secret surveillance programs.

“In this context, you’re talking about access to the most sensitive national security information,” Bradbury said. Any adversary, he added, would “have to be an officer of the U.S. government and fully participate in the process.” [my emphasis]

What I suspect Bradbury actually means is that an adversarial process might expose this intelligence as the rot it is (as the adversarial habeas process for Gitmo detainees has done).

It’s bad enough that a court has gutted the Fourth Amendment in secret. But it did so because it was presented with unchallenged intelligence derived from a now-discredited torture program.

When one of the unions that represent FBI Agents floated a trial balloon supporting Mike Rogers to be FBI Director, it got a lot more press attention than the unlikelihood of their request merited.

Let’s see whether this letter — from 5 retired FBI Agents — gets similar press attention. It raises concerns about two parts of Jim Comey’s past: his concurrence with a May 10, 2005 memo authorizing (among other things) torture — which I wrote about here — and his support for the indefinite detention of Jose Padilla.

However, the public record also shows that Mr. Comey concurred with a May 10, 2005 Office of Legal Counsel opinion that justified those same enhanced interrogation techniques for use individually. These techniques include cramped confinement, wallstanding, water dousing, extended sleep deprivation, and waterboarding, all of which constitute torture or cruel, inhuman, or degrading treatment in contravention of domestic and international law. Further, Mr. Comey vigorously defended the Bush administration’s decision to hold Jose Padilla, a United States citizen apprehended on U.S. soil, indefinitely without charge or trial for years in a military brig in Charleston, South Carolina.

Among the signatories is Jack Cloonan, a former member of the Osama bin Laden team who watched as CIA started interrupting successful interrogations to subject the detainee to torture instead. I’d be surprised, too, if he didn’t know Comey from the Southern District of NY days.

The letter suggests that Comey might not guard the FBI’s legacy as nobly as Robert Mueller (!) did.

The FBI, while not a perfect institution, has a proud history of dealing with terrorism suspects in accordance with the law. When other agencies and departments resorted to “enhanced interrogation” techniques, FBI Director Mueller directed FBI agents not to participate and in many cases FBI agents were pulled from the field where there were concerns about complicity with unlawful interrogation approaches. To date, the FBI has played a role in prosecuting within the civilian criminal justice system nearly 500 international terrorism cases–often leading to substantial periods of incarceration—

without having to resort to indefinite detention. Even Jose Padilla was ultimately given a trial in a civilian court, despite claims by Mr. Comey that prosecuting Padilla or otherwise affording him traditional due process protections would compromise national security.

They also tied Comey’s confirmation process to the declassification of the Senate Intelligence Committee’s torture report.

The Agents ask only that Comey “reject” the May 10, 2005 OLC memo. Me, I’d like the Senate to demand a full explanation for the circumstances of it. The memo was retroactive to cover someone who had already been tortured (though of course probably served to authorize Abu Faraj al-Libi’s torture, among others). At the very least the Senate Judiciary Committee could demand that Comey explain the circumstances of that retroactive approval.

Mark Udall and Ron Wyden have persistently repeated one of the findings from the Senate Intelligence Committee torture report: the CIA gave inaccurate information about the program, and it wasn’t very effective.

So it’s unsurprising that they would go beyond their past questions whether the Section 215 dragnet of US person call records is effective to make it clear they had pushed for the Internet metadata program to be ended because it, too, is ineffective.

We are quite familiar with the bulk email records collection program that operated under the USA Patriot Act and has now been confirmed by senior intelligence officials. We were very concerned about this program’s impact on Americans’ civil liberties and privacy rights, and we spent a significant portion of 2011 pressing intelligence officials to provide evidence of its effectiveness. They were unable to do so, and the program was shut down that year.

[snip]

Intelligence officials have noted that the bulk email records program was discussed with both Congress and the Foreign Intelligence Surveillance Court. In our judgment it is also important to note that intelligence agencies made statements to both Congress and the Court that significantly exaggerated this program’s effectiveness. This experience demonstrates to us that intelligence agencies’ assessments of the usefulness of particular collection programs – even significant ones – are not always accurate. This experience has also led us to be skeptical of claims about the value of the bulk phone records collection program in particular.

We believe that the broader lesson here is that even though intelligence officials may be well-intentioned, assertions from intelligence agencies about the value and effectiveness of particular programs should not simply be accepted at face value by policymakers or oversight bodies any more than statements about the usefulness of other government programs should be taken at face value when they are made by other government officials. It is up to Congress, the courts and the public to ask the tough questions and press even experienced intelligence officials to back their assertions up with actual evidence, rather than simply deferring to these officials’ conclusions without challenging them.

We look forward to continuing the debate about the effectiveness of the ongoing Patriot Act phone records collection program in the days and weeks ahead.

This is actually what the Inspectors General have implied: that it’s not clear these programs are effective.

So why are we collecting dragnets of American communications for no good reason?

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As you’ve likely heard already, NPR and others have reported that President Obama will nominate Jim Comey to lead the FBI.

I think Comey is a decent choice.

Much of the attention since this news broke has focused on Comey’s role in the hospital confrontation, where he threatened to resign unless the Bush Administration fixed the illegal wiretap program. That will clearly be a highlight of Comey’s confirmation discussion.

But just as much as Comey’s unsent resignation letter, I’m curious how these emails will play in his confirmation process.

They were similar Comey CYA, from the period in May 2005 when Dick Cheney was pushing Alberto Gonzales to reauthorize all the torture CIA had been doing since Jack Goldsmith had withdrawn the Bybee Two memo in 2004. While Comey did buy off on approving the waterboarding that had already been done (he unsuccessfully tried to limit it to one detainee whose treatment occurred after the Bybee Two memo was withdrawn), he also pushed hard — and failed — to get Alberto Gonzales to refuse to approve the techniques in combination, as they had reportedly always been used.

In the emails, he talks about when news of what was being approved broke (details of what freaked Comey out so much still haven’t become public), those pushing for torture would be gone. He regretted how much weaker Gonzales was than John Ashcroft, recalling that hospital bed scene.

I told him the people who were applying pressure now would not be there when the shit hit the fan. Rather they would simply say they had only asked for an opinion.

[snip]

It leaves me feeling sad for the Department and the AG.

[snip]

I just hope that when this all comes out, this institution doesn’t take the hit, but rather the hit is taken by those individuals who occupied positions at OLC and OAG and were too weak to stand up for the principles that undergird the rest of this great institution.

[snip]

People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the WH, when it came to crunch-time, he stood up, even from an intensive care hospital bed. That backbone is gone.

Comey even tried to scare the torturers with warnings that the torture videos would one day become public — just six months before the torturers destroyed those videos.

There’s far more, which I laid out in this post and this post.

But what’s just as interesting as the actual content of the emails is the spin that NYT reporters Scott Shane and David Johnston gave it, presumably at the behest of the torturers who leaked it to them. They chose to ignore all the details about people like Cheney and Condi Rice pushing for more more more, immediately, and instead to focus on Comey’s assent to the memo effectively approving of the torture — including waterboarding — that had already been done.

Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.

That opinion, giving the green light for the C.I.A. to use all 13 methods in interrogating terrorism suspects, including waterboarding and up to 180 hours of sleep deprivation, “was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times.

It’s true. Comey did buy off on that memo. He did buy off on a memo approving 7.5 days of sleep deprivation and waterboarding (though not, as Cheney was pushing so hard to do, together).

During John Brennan’s confirmation hearing, Saxby Chambliss made sure to get John Brennan’s much more complacent involvement in torture into the record. He made sure to get Brennan to admit to having submitted FISA warrant applications that relied on tortured information. Those efforts, I suspect, were designed to make it a lot harder for Brennan to separate the CIA from torture going forward.

The evidence in these emails is in some ways more damning, but in most ways far, far less, than what we know of Brennan’s role in torture.

But I expect the same people who leaked these emails to NYT’s remarkably obedient reporters will try the line again.

And why not? At least one of those credulous reporters is still parroting his sources’ spin.

When last we left the saga of the US role relating to the “rogue” Afghan death squad in the Nerkh District of Maidan Wardak province of Afghanistan, the New York Times was studiously transcribing denials from various US government officials of any US involvement  in the torture, disappearances and murders that are both the touchstone of US-trained death squad operations dating back at least to Central America in the 1980’s (if not all the way back to Vietnam) and the atrocities that prompted Hamid Karzai to announce that he was expelling US Special Forces from the province. Although Karzai eventually relented somewhat and agreed to only expel US Special Forces from the Nerkh District instead of the entire province, as I pointed out in my post on the Times’ transcription of US denials, evidence continues to accumulate that CIA paramilitary operations personnel almost certainly seem to have been involved in the training and deployment of the “rogue” Afghan Local Police unit based in Nerkh. With today’s new development, it seems very likely that these CIA paramilitary personnel (and their Afghan trainees) are still operating, with impunity, at the Nerkh base.

What we learn today is stunning and looks like a calculated move intended to strike fear into the local population around the Nerkh base (which is, of course, the aim of US-trained death squads organized under the COIN rubric). From the New York Times:

Family members on Tuesday found the body of a man missing since last November near the American Special Forces base to which he was last seen being taken, according to Afghan officials and victims’ representatives.

Afghan investigators said that after his disappearance, the man, Sayid Mohammad, was seen in a video undergoing torture at the hands of an Afghan-American named Zakaria Kandahari, who was the chief translator for an American Army Special Forces A Team stationed at the base in the Nerkh district of Wardak Province.

Mr. Mohammad’s body was found about 200 yards outside the perimeter of the Nerkh base, which is now occupied by Afghan special forces after the American unit was removed following protests by Afghan officials, including President Hamid Karzai.

Relatives of Mr. Mohammad said his body was largely intact but both of his feet had been cut off. They took his remains to the Nerkh district government center in protest. The partial remains of another missing person were also found near the base, family members and Afghan officials have said.

The article is silent on the question of how long the victim appeared to have been dead. Note that the Times reminds us that the Nerkh base no longer has US Special Operations Forces. I find it very hard to believe that a group of Afghan Local Police and Afghan Special Forces, after having drawn so much local anger and international attention to themselves through prompting Karzai’s outburst and expulsion of US Special Forces, would carry out such a brazen and brutal move on their own. However, if CIA paramilitary operatives are still present at the base and still directing (and protecting) the Afghan team, the move seems less surprising.

We also learn in today’s article that at least 17 people are now known to have been disappeared by this death squad. Nine of those victims have been found dead and eight are still missing. Afghan investigators are considerably less credulous of US denials of involvement than the Times is:

“There is no question that Zakaria directly tortured and murdered,” the investigator said. “But who is Zakaria? Who recruited him, gave him his salary, his weapons? Who kept him under their protection? He worked for Special Forces. That a member of their team was committing such crimes and they didn’t know it is just not credible.”

The description of the videotape of the torture session conducted by Kandahari (which still has not been released) has changed in one respect. Today’s article informs us that the Afghan investigator who was interviewed now says there were no voices with American accents on the tape.

Not that it really needs pointing out, but involvement of CIA paramilitary personnel at the Nerkh base would by definition be a covert mission covered by false, but official US government denials.

Oh, and there’s one last question I would have added to the Afghan investigator’s list above: Who helped Zakaria Kandahari to escape without a trace?

The answers to those questions would go a long way toward confirming or denying my speculation on CIA paramilitary personnel (including contractors) being central to these awful events.

As evidence from investigations carried out by Afghan officials continues to mount that a figure now named (although it seems quite likely to me that this is not a real name) Zakaria Kandahari is at the heart of the cases of torture and murder of Afghan civilians that prompted Hamid Karzai to ban US Special Forces from Maidan Wardak province in February, the US found it necessary to provide an anonymous official to the New York Times as they published the Afghan revelations. Here is the heart of the dispute as outlined in the Times article:

The accusations against the man, Zakaria Kandahari, and the assertion that he and much of his unit are American are a new turn in a dispute over counterinsurgency tactics in Wardak that has strained relations between Kabul and Washington. American officials say their forces are being wrongly blamed for atrocities carried out by a rogue Afghan unit. But the Afghan officials say they have substantial evidence of American involvement.

They say they have testimony and documents implicating Mr. Kandahari and his unit in the killings or disappearances of 15 Afghans in Wardak. Mr. Kandahari is of Afghan descent but was born and raised in the United States, they say. Included in the evidence, the Afghan officials say, is a videotape of Mr. Kandahari torturing one of the 15 Afghans, a man they identified as Sayid Mohammad.

As the discussion moves to the videotape, the anonymous official is trotted out:

Afghan officials who have seen the videotape say a person speaking English with an American accent can be heard supervising the torture session, which Mr. Kandahari is seen conducting.

An American official, speaking on the condition of anonymity in line with official policy, confirmed the existence of the video showing Mr. Kandahari but denied that he was an American citizen. “Everybody in that video is Afghan; there are no American voices,” the official said.

What appears not to be in dispute, then, is that Kandahari is torturing the victim in the tape. The US claims no Americans are present and even that the voice identified by the Afghans as having an American accent is not American. But how can the anonymous US official know whose voice is the one in dispute? If the person is not seen on the tape, then the only way the American official’s claim could be true is if they carried out voice analysis on a computer and got a positive match with a person known not to be American.

But the next denial from the anonymous official is even less believable. The US Special Forces group at the center of this controversy is now known to have been based in the Nerkh district of the province and to be an “A Team”, “who work with extra resources that the military calls “enablers””. Remarkably, the article doesn’t make the tiny leap that is needed to deduce that at least some of these “enablers” working with the A Team must be CIA, even though near the end of the article, it is noted that this group came to Nerkh from Camp Gecko in Kandahar and there is a definite CIA connection there:

Afghan officials and human rights investigators say Camp Gecko, formerly the home of the Taliban leader, Mullah Omar, now includes a C.I.A. paramilitary base and some Special Operations facilities.

The almost certain involvement of CIA personnel or contractors with the A Team makes this denial from the anonymous official laughable:

The American official said the team was not to blame. “We have done three investigations down there, and all absolve ISAF forces and Special Forces of all wrongdoing,” the official said, referring to the NATO-led International Security Assistance Force. “It is simply not true.”

Of course, Special Operaions Forces in Afghanistan have been known to commit atrocities and then try to stand by their lies of not carrying them out. At least once, they have even been caught digging bullets out of innocent victims to try to hide their involvement. In this case, however, the amorphous Kandahari character seems to fit as a CIA operative, so a denial by Special Operations is most likely only a diversion.

More evidence that Kandahari most likely is CIA comes from his “mysterious” disappearance:

The American official said the military was not trying to shield Mr. Kandahari. “The S.F. guys tried to pick him up, but he got wind of it and went on the lam, and we lost contact with him,” the official said. “We would have no reason to try to harbor this individual.”

But it turns out that Kandahai isn’t the only one who disappeared. If we go back to the Washington Post article on Karzai expelling Special Operations forces, we have this:

In earlier interviews, palace officials said they submitted a report to Karzai on Jan. 7 about one round of investigation of the alleged misconduct. The inquiry found that up to eight Afghan translators for American troops were operating in the northern Nerkh district of Wardak, wearing the uniforms of Afghan commandos in the national army. People had complained about abusive treatment by the group, the report said.

The Afghan defense minister, Bismillah Khan Mohammadi, said at the time that the ministry demanded that NATO hand over the men. But coalition officials reportedly said they were not working with the alliance and had disappeared.

Interestingly, the story now in the New York Times is that those uniforms worn by the now-disappeared group were “American-style”. And they were a colorful group indeed:

Afghan officials give a different account of his role. They say he and others working with the team wore American-style military uniforms, but had long beards and often, bizarrely, rode motorized four-wheeled bikes on hunts for insurgents. The Afghan officials said Mr. Kandahari appeared to be in a leadership position in the unit.

If they weren’t CIA, how else could a group of eight “translators” wearing either US or Afghan uniforms, but sporting long beards (which would stand out since both US and Afghan forces generally are clean shaven when in uniform) just disappear into the Afghan sunset on four wheelers? The one bit of truth I find in this part of the account is where the anonymous US official states that Kandahari “got wind” of the intent to hand him over to the Afghans. Of course the CIA enablers working with the A Team would have no difficulty in getting wind that they need to hit the road.

Eight human rights organizations just sent a letter to President Obama urging him to appoint a high level White House official to coordinate the Senate Intelligence Committee torture report out of the White House. Like the letter Mark Udall already sent, this one implies releasing the report is crucial to delivering on Obama’s 2009 promise to end torture.

As one of your very first acts as President, you signed an Executive Order that closed the CIA’s “black sites” and restricted the agency to the techniques in the Army Field Manual.

[snip]

We believe the public release of the Senate Select Committee on Intelligence study is critical to upholding your 2009 Executive Order. Safeguarding your Executive Order from being overturned by a future administration or Congress will help ensure that the United States does not return to policies of torture and cruelty again.

But here’s the key paragraph.

Most importantly, your administration has a responsibility to ensure that the Executive Branch response to the study is not driven by individuals who might be implicated in the CIA’s use of torture. While it is appropriate for individuals who have direct knowledge of the program to provide input, others with knowledge of the program should also be consulted. We urge you to ensure that a consolidated response representing the considered view of all parts of the Executive Branch is submitted to the Committee for review. [my emphasis]

Let’s name names, shall we?

The person currently driving the Torture Report declassification process is a guy by the name of John Brennan (indeed, as Goldman and Apuzzo note in their coverage of the Clandestine Service decision, few other high ranking torturers are left).

At the time the torture program was instituted, he was CIA’s Deputy Executive Director, in charge of things like logistics and personnel. He was, at a minimum, read into the torture techniques as they were being approved. Few people around at the time remember him expressing any opposition to them — aside from wanting the politicians who approved torture to be held responsible for it. Brennan also admits to knowing the torture was taped, and his forgetfulness about whether he sought information on CIA lawyer John McPherson’s review of the torture tape leads me to suspect he learned, at the time, that the torturers were destroying the record of them exceeding torture guidelines. Brennan also — after he had moved on to the Terrorist Threat Integration Center — relied on information derived from torture in sworn declarations submitted to the FISA court.

I’d say all that qualifies Brennan as an “individual who might be implicated in the CIA’s use of torture.” (It should also have disqualified him for the job, but you fight torture with the Senate you have, not the one that might be a functioning oversight body.)

That is, these human rights groups, though far more polite than I am, are basically saying that John Brennan shouldn’t be entrusted with this declassification decision because he’d be covering up his own role in it (he is mentioned, though not badly implicated, in the report).

But that same line is also where the logic of this letter fails.

After all, as I have pointed out, torture was not CIA’s baby. It was the White House’s. And while Obama personally had no role in authorizing torture (except insofar as the government relies on Appendix M to use techniques that amount to torture, and outsources it to countries like Somalia), the President — President Bush — did. So while, unlike Brennan, Obama isn’t personally implicated in what the report shows, his office — one whose authority he has jealously guarded — is. Every appeal to the White House to declassify this report should be clear about that fact.

Particularly given the one objection Brennan is reported to have expressed back in the early days of torture:

He expressed concern, according to these officials, that if details of the program became public, it would be CIA officers who would face criticism, rather than the politicians and lawyers who approved them.

The one objection Brennan had to torture, it seems, is that the CIA — not the White House — would be blamed for it.

I would imagine the White House knows that well.