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Group Behind Deadly Kabul Blast Upset by Negotiations on US Troops Remaining in Afghanistan

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There was a deadly blast in Kabul yesterday, shattering what had been several months of relative peace in the capitol. The suicide blast targeted a convoy of US vehicles. From the New York Times:

Hezb-i-Islami, a relatively small insurgent faction that often competes with the Taliban for influence, claimed responsibility for the attack, which also wounded more than three dozen Afghans. Haroon Zarghon, the group’s spokesman, reached by telephone in Pakistan, said the bombing was carried out by a 24-year-old man who had grown up south of Kabul.

More attacks against Americans will come soon, Mr. Zarghon added, saying that Hezb-i-Islami was dismayed by the current talks between Afghanistan and the United States about a long-term security deal under which thousands of American soldiers could be based in Afghanistan for years to come.

Hezb-i-Islami has a complex history and has been around Afghanistan for a long time. Even Kimberly Kagan’s Instutite for the Study of War admits that the CIA funneled significant support to this group in fighting the Soviets:

Hizb-i-Islami Gulbuddin (HIG), led by Gulbuddin Hekmatyar, is an insurgent group active in Afghanistan. It is a splinter group of one of the prominent , and the most radical of the seven mujahedeen factions fighting the Soviets in the 1980s. Hekmatyar , a favorite of the CIA and Pakistan’s Inter-Services Intelligence (ISI) Directorate, received the greatest portion of foreign assistance to the mujahedeen.  Hekmatyar trained Afghan and foreign guerilla fighters in the refugee camps of Shamshatoo and Jalozai in Pakistan’s Northwest Frontier Province (NWFP) and also ran numerous schools and hospitals in NWFP. His organization  also received funds from Saudi charity organizations, Muslim Brotherhood, al-Qaeda leader, Osama Bin Laden, and other wealthy Arabs.

The political side of the group, however, is active in the current government and is contemplating fielding a candidate for the upcoming Presidential elections:

The party’s deputy chief Ghairat Bahir said that a delegation of four senior party figures are in Kabul meeting local members to discuss the election and possible presidential candidates.

“We have sent a delegation to Kabul. The delegation is led by Mohammad Rassoul. Its purpose is to visit and discuses [sic] with Hezb-e-Islami members in Kabul, not to talk with [Afghan] government officials,” he told TOLOnews via telephone from Pakistan.

“The delegation has talked with the party members about the election and the party decided to introduce a candidate or support a competent candidate. We will soon make a final decision on this. I cannot name the candidate but our party’s nomination will be a prominent person in the country,” Bahir said.

The presence of US troops in Afghanistan is the primary concern for the group: Read more →

Gul Rahman: Another Case Where Torture (and Homicide) Failed to Elicit the Location of Extremist Leaders

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The US government has a long history of refusing to turn over evidence on its torture program, most recently when DOJ refused to cooperate with a Polish inquiry into the black site at which Khalid Sheikh Mohammed was waterboarded 183 times.

So it’s no surprise that they are refusing to turn over the remains of Gul Rahman–the detainee whom the CIA killed in the Salt Pit in 2002–to his family. (h/t Mary) The FBI is also refusing to turn over the autopsy report on Rahman’s death to the AP on account of the probably “pretend” investigation they’re conducting on it.

Assholes.

In addition to reporting that news, the AP reports the excuse the CIA is now giving for having killed Rahman in the first place.

Former CIA officials say Rahman was acting as a conduit between Hekmatyar and al-Qaida. Hekmatyar’s insurgent group is believed to be allied to al-Qaida. The former officials said the CIA had been tracking Rahman’s cell phone at the time of his capture and were hoping the suspected militant would provide information about Hekmatyar’s whereabouts.

But Rahman never cracked under questioning, refusing to help the CIA find Hekmatyar. Former CIA officials described him as one of the toughest detainees to pass through the CIA’s network of secret prisons.

Note the logic of this argument? For some reason, they couldn’t find Hekmatyar by tracking Rahman’s cell phone (Rahman was picked up long before Afghans got more aggressive about hiding their cell phone locations).

But if they couldn’t find Hekmatyar by tracking Rahman’s calls to him, then why were they so sure he knew where Hekmatyar was?

So now they’ve got to explain away his death because he was “one of the toughest detainees to pass through the CIA’s network of secret prisons,” and not because maybe he didn’t know the answer to the question they were asking, the location of Hekmatyar himself.

Of course, there’s a history of using the worst kinds of torture on detainees who don’t know or wouldn’t reveal the whereabouts of others, too. The location of Osama bin Laden, after all, is one of the things that KSM has said he lied about in response to his brutal torture.

And while we’re on the subject of lying, let’s return to what KSM has said he lied about while being tortured during his 2007 Combatant Status Review Tribunal.

… I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area of this is al Qaida which I don’t him.

Mind you, in KSM’s case, at least, Ali Soufan believes KSM could have been persuaded to reveal OBL’s location if only real interrogators had interviewed him.

KSM should consider himself lucky, I guess, that the government’s brutal torture in hopes of learning the location of top extremist leaders got slightly safer between the time they killed Rahman and wateboarded him a mere 183 times.

Even the Crusades Weren’t “Forever”

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I’m going to assume John Cole was asking sincerely when he posted this request.

Can someone explain this reaction from Emptywheel:

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.

 

What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Maybe I am misinterpreting these remarks, and you have to watch the video, but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities? Don’t we agree that is a bad thing? Isn’t Kagan right? What should she have said?

The question of whether the GWOT will have a “definable end” that justifies indefinite detention means two things in practical terms. First, how long will a state of war exist that justifies our holding of 48 Gitmo detainees who can’t otherwise be prosecuted. And second, how long will a state of war exist that justifies holding people at Bagram, including bringing them to Afghanistan after being captured in other locations, for indefinite detention.

48 Gitmo detainees

So how long will we have a legal claim–both within US and international law–to justify holding the 48 detainees at Gitmo that we currently can’t charge but deem too dangerous to release?

As I pointed out in this post, the Gitmo Review Task Force Report provided the following reasons why we can’t charge these men:

  • At least some of these detainees can’t be charged because evidence against them is tainted (this probably includes people like Mohammed al-Qahtani and Abu Zubaydah).
  • For others, we only have evidence they were members of al-Qaeda, and not that they engaged in any actual terrorism against the United States, even including actions taken after October 2001 which might be legally considered self-defense but which in some cases (such as with Omar Khadr) we’ve chosen to label as terrorism. If these people had engaged in the same activities for which we’ve got evidence after October 2001–and especially after December 2004–we might be able to charge them, but they haven’t.
  • For a number of these men, we had evidence that we could have used to charge them with material support for terrorism but held them so long without charges that the statute of limitations has expired.
  • For some of these men, we purportedly could have charged them with material support, but did not because of “sentencing considerations,” which I take to mean we believed that the 15 year maximum sentence was too short, and so have not charged them (note, the Obama administration has not gone to Congress and asked for a change to this sentence).

Given that we can’t try these men, we are instead justifying holding them under the law of war. As Kagan explained,

Under the traditional law of war, it is permissible to hold an enemy combatant until the end of hostilities and the idea behind that is that the enemy combatant not be enabled to return to the battlefield.

And, as she made explicit elsewhere in this exchange and repeatedly during her hearings, our ability to invoke the law of war depends on our ability to invoke the AUMF passed after 9/11, which states,

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [my emphasis]

We can only legally use this justification against people who either by themselves aided 9/11, or were members of an organization or nation that aided 9/11.

Now, we’re already pushing this, as the government’s lousy 14-36 record on habeas cases makes plain. For example, the Gitmo Task Force claimed the ability to hold people who simply have a “history of associations with extremist activity” without requiring that they have actually either membership in al Qaeda or direct participation in 9/11.

But to envision that the hostilities authorized by the AUMF will not end, you have to envision both that the  al Qaeda and affiliates that existed at the time of 9/11 will exist indefinitely, and/or that we will remain at war against the Taliban forever.  In some cases, this is obviously not going to be the case. Hamid Karzai is already talking about bringing Gulbuddin Hekmatyar into government. If he does so, will we still have justification to hold the members of Hezb-e-Islami Gulbuddin who are among the 48? Discussions about a deal with the Taliban are less optimistic, but if we really do withdraw in 2011, will we still have the basis to hold the Taliban members who are among the 48? If we kill or capture Osama bin Laden and Ayman al-Zawahiri, will we still claim holding someone who served as OBL’s guard in 2001 is too dangerous to release?

But even the al Qaeda and affiliates described in the AUMF seem to have a definite endpoint. After OBL and Zawahiri are gone and we’ve managed to kill our 217th “al Qaeda Number 3” will we still be able to say that the al Qaeda that hit us on 9/11 still exists? At some point, judges are going to consider the al Qaeda copycat groups that pop up in various locales to be too tenuously connected to the al Qaeda of 9/11 to be meaningfully the same group anymore.

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The Salt Pit and the Bybee Memos

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The AP has a long article out providing details behind the Salt Pit death of a detainee named Gul Rahman–a former militant associated with Gulbuddin Hekmatyar who was captured on October 29, 2002 at the home of Hekmatyar’s son-in-law, Dr. Ghairat Baheer, along with the Baheer and three others. A week later, Rahman was separated from the others. He was subjected to stress positions and water dousing and–on November 20–left in 36 degree cold, only to die a few hours later.

Aside from finally providing details on a story that has long been known, the story is interesting for the way it shows the how the CIA’s torture system fit with DOJ’s approvals in the Bybee Memos. The Rahman death shows that CIA’s managers (probably in the Counterterrorism Center) were involved in direct guidance on a technique that got someone killed. That technique was specifically not approved in the Bybee Two memo. But when CTC worked to exonerate the guy in the field–the manager of the Salt Pit–they pointed to the intent language of the Bybee One memo, and claimed that anything short of intending severe pain could not qualify as torture. Ultimately, CIA’s managers used the Get Out of Jail Free Card that John Yoo had written them to prevent accountability for themselves when they gave approval for a technique that got someone killed.

Gul Rahman died from water dousing

The AP describes how, in response to Rahman’s resistance to US guards (he threw a latrine bucket), he was subjected to stress positions and dousing.

At one point, the detainee threw a latrine bucket at his guards. He also threatened to kill them. His stubborn responses provoked harsher treatment. His hands were shackled over his head, he was roughed up and doused with water, according to several former CIA officials.

The exact circumstances of Rahman’s death are not clear, but the Afghan was left in the cold cell on the morning of Nov. 20, when the temperature dipped just below 36 degrees. He was naked from the waist down, said two former U.S. officials familiar with the case. Within hours, he was dead.

Though the AP doesn’t say it, the language used here makes it clear CIA thought of this as water dousing–a technique that would not be approved by DOJ for use until August 26, 2004. After Rahman died, the CIA tried to invent the Legal Principles document as a way to authorize murder and other crimes, but Jack Goldsmith would go on to not only refuse to consider that document OLC authorization, but to refuse to approve water dousing specifically in March 2004.

In other words, three years and our third review of this case later, and DOJ still hasn’t decided whether wetting someone down in close to freezing temperatures is a crime, even though this was a torture technique that DOJ had not approved at the time.

The Salt Pit manager relied on the advice of his superiors

Now, the guy who wet down Rahman apparently wasn’t working off a list of approved techniques. Rather, he was asking for guidance from his superiors.

The [Inspector General’s] report found that the Salt Pit officer displayed poor judgment in leaving the detainee in the cold. But it also indicated the officer made repeated requests to superiors for guidance that were largely ignored, according to two former U.S. intelligence officials.

That raised concerns about both the responsibility of the station chief and the CIA’s management in Langley. Similar concerns about CIA management were later aired in the inspector general’s review of the CIA’s secret interrogation program.

In fact, John Yoo, appears to blame the people interpreting the Bybee Memos for any untoward results from torture. For example, he refers to a written document (probably cables to the field) that appear to be derivative of the Bybee Memo, suggesting those didn’t properly account for pain that might amount to death.

The Memo says that the pain must rise to the level that “would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions.” Bybee Memo at 6. There is no way to interpret this sentence other than that if the pain is equivalent to the pain that accompanies those conditions, the infliction qualifies as torture, whether or not it actually does result in those conditions. It certainly would not be so misinterpreted by the sophisticated legal audience at which the Bybee Memo was directed–especially given the analysis in the Classified Bybee Memo, which carefully examined the level of physical pain caused by the individual interrogation techniques even though none of those techniques cause death, organ failure, or serious impairment of bodily functions. See Classified Bybee Memo at 9-10 (“With respect to physical pain, we previously concluded that ’severe pain’ within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury.”)40

40 [long redaction] But, of course neither Professor Yoo nor Judge Bybee have anything to do with writing or reviewing [redacted] and they could reasonably assume their own work product would be read in good faith and consistently with its terms by a sophisticated audience even if a particular reader did not read it carefully or willfully disregarded its terms. [emphasis original]

That is, Yoo seems to blame whoever both read the Bybee Memo and–having interpreted the memo in a “sophisticated” manner–passed on authorization for techniques that did result into death.

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