“Humane Societies … Pursue Justice”

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One of the most important ways in which humane societies struggle to deter outbreaks of mass violence is by working to pursue justice, so that would-be war criminals might think twice about their actions after seeing that perpetrators of such crimes are being aggressively pursued and held to account for their crimes.

DOJ Criminal Division Chief, Lanny Breuer, boasting of the formation of the Human Rights and Special Prosecutions Section at DOJ, while speaking at a Holocaust Remembrance Program held by the Jewish Community Relations Council of Greater Washington.

I don’t, in any way, mean to equate the war crimes committed by our own government in the last decade with the Holocaust. I do, however, mean to remind those in a position to do something about “pursuing justice” that more recent war crimes remain virtually unexamined.

Did CIA Misrepresent Interrogation Policy to Court in Passaro Case?

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I wrote in my last post on David Passaro that he knew precisely how to defend himself (go here for general background on Passaro and his case). Even before he was indicted, Passaro asked for discovery on CIA’s rules of engagement for detainee interrogations, which he tied to SERE techniques well before the connection had been made publicly.

Which is why Passaro’s requests–and CIA’s refusals–for interrogation guidelines are so interesting. While much of those early discovery requests remain redacted, on November 18, 2004 Passaro requested:

  • All memoranda from OLC on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • All memoranda from CIA’s Office of General Counsel on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • “[C]omplete contents of the rules of engagement for the CIA that address the capture, detention, and/or interrogation of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan” including those categorized as “force protection targets”
  • “[A]ll written documents, photographs, video, and sound recordings that contain the methods employed in Afghanistan by members of CIA, DOD, or OGA for the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations, or other combatants operating in Afghanistan, including policies and guidelines developed in early 2003 for use by Special Operations forces“
  • “[A]ll orders, directives, and/or authorizations by President George W. Bush; ex-CIA Director George J. Tenet; the CIA Director of Operations; and the head of CIA’s Counterterrorist Center, Office of Military Affairs, or any other CIA component, that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda or other terrorist organizations or combatants operating in Afghanistan”
  • All information on Passaro’s training [my emphasis]

At some point (the document appears to have been sent on January 23, 2006), the government handed over the only such description it gave to Passaro’s team (see PDF 21), what they claim was a December 3, 2002 cable sent in support of operations in Afghanistan and along the Pakistan border.

When CIA officers are involved in interrogation of a detainee, the conduct of such interrogation should not encompass any significant physiological aspects (e.g., direct physical contacts, unusual mental distress, unusual physical restraints, or deliberate environmental deprivations)–beyond those reasonably required to ensure the safety and security of the detainee–without prior and specific headquarters guidance.

Now, the cable is interesting on its own right. It has not, to the best of my knowledge, appeared in any FOIA document dump or even Vaughn Declaration. Though we know that Langley sent a long cable to the Thai black site on November 30, 2002. And in the beginning of December there was cable traffic back and forth about closing that black site and destroying the torture tapes. The date certainly suggests the cable to Afghanistan might have been a response to Gul Rahman’s November 20, 2002 death at the Salt Pit, particularly with its prohibition on any “deliberate environmental deprivations.”

Note, too, the language the CIA used: “in support of ongoing CIA operations in Afghanistan and along the Pakistan border.” The reference to Pakistan sure sounds like a tacit admission that CIA was working in Pakistan already by that point.

But the really disturbing part of this document is CIA’s claim that this policy governed the interrogation of Abdul Wali in June 2003. After all,. the month after they sent this cable, George Tenet issued Guidelines to cover the CIA interrogation of detainees, guidelines that “control” over guidelines previously sent by the Directorate of Operations. That is, Tenet’s Guidelines, not the December 3, 2002 cable, would seem to have been the operative guidelines in June 2003.

And these guidelines, addition to approving, as “standard” two of the three initial techniques used with Abdul Wali (sleep and food deprivation), also describe a set of Enhanced Techniques for use with approval by Headquarters. At least three of these Enhanced Techniques–walling, abdominal slap, wall standing, and stress positions–were also, arguably, the treatment used with Wali. He was repeatedly slammed against a wall, hit in the stomach, and forced to do the “iron chair” for at least an hour at a time.

While the document, by itself, doesn’t say anything about whether or not the techniques would have been approved for use with Wali (I’ll look at that closer in a follow-up post), it does seem that the CIA deliberately refused to turn over to the defense a document that would have shown some of the treatment used with Wali was not only (with approval) acceptable, but for some techniques, “standard.”

Mind you, there are at least two ex parte filings that might include this document (or the other documents Passaro requested), one in November 2005 and one in January 2006. So the only question here is whether the government turned over the Tenet document to the Court, but not the defense.

But in any case, they certainly avoided admitting to the jury that CIA considered some of the techniques used with Wali standard.

Daniel Levin Tells Jim Haynes, Again, Not to Torture

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We’ve long known that in February 2005, then-acting head of OLC Daniel Levin contacted DOD General Counsel to remind him that the March 14, 2003 Yoo memo on torture had been withdrawn. But I, for one, had never seen a copy of that letter. It turns out the government included it with their Appeals brief in the David Passaro case (see pages 99-100).

The memo is important for several reasons.

First, note the date: February 4, 2005. The memo was written on Levin’s last day as acting OLC head, the day Alberto Gonzales was confirmed Attorney General. Particularly given questions about what authority DOD had for detainee interrogations after Jack Goldsmith purportedly withdrew the memo, the fact that Levin saw the need to formally remind Haynes the memo had been withdrawn on his last day is telling. Remember, too that Levin had real concerns about whether Steven Bradbury–who would take over as acting head of OLC the following day and would go on to write a crazy opinion authorizing DOD’s Appendix M the following year–should be appointed OLC head.

Only, it’s not entirely clear Goldsmith ever did withdraw the memo.

Here is the text of the memo:

In December 2003, then-Assistant Attorney General Jack Goldsmith advised you that the March 2003 Memorandum was under review by his Office and should not be relied upon for any purpose. Assistant Attorney General Goldsmith specifically advised, however, that the 24 interrogation techniques approved by the Secretary of Defense for use with al Qaeda and Taliban detainees at Guantanamo Bay Naval Base were authorized for continued use as noted below. I understand that, since that time, the Department of Defense has not relied on the March 2003 Memorandum for any purpose. I also understand that, to the extent that the March 2003 Memorandum was relied on from March 2003 to December 2003, policies based on the substance of that Memorandum have been reviewed and, as appropriate, modified to exclude such reliance. This letter will confirm that this Office has formally withdrawn the March 2003 Memorandum.

The March 2003 Memorandum has been superseded by subsequent legal analyses. The attached Testimony of Patrick F. Philbin before the House Permanent Select Committee on Intelligence, July 14, 2004, reflects a determination by the Department of Justice that the 24 interrogation techniques approved by the Secretary of Defense mentioned above are lawful when used in accordance with the limitations and safeguards specified by the Secretary. This also accurately reflects Assistant Attorney General Goldsmith’s oral advice in December 2003. In addition, as I have previously informed you, this Office has recently issued a revised interpretation of the federal criminal prohibition against torture, codified at 18 USC 2340-2340A, which constitutes the authoritative opinion as to the requirements of that statute. [citation omitted; my emphasis]

Note that Levin makes it clear that Goldsmith did not withdraw the memo in December 2003, he just advised Haynes not to rely on it (we knew this). But Levin also makes no mention of Goldsmith formally withdrawing the memo, as the OPR Report suggests happened, in spring of 2004. And while Levin makes it clear–as he did in his September 2004 memo summarizing the advice OLC had given on torture–that Pat Philbin’s testimony to HPSCI was understood to serve as OLC advice to DOD, Levin’s statement that he was “confirming” that OLC had withdrawn the memo suggests DOD had not yet received such a written notice before then.

Obama Killed The Johnsen Nomination, Not Ben Nelson Nor The GOP

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It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.

The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).

Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:

Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.

The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.

A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
…..
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.

Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure. Read more →

David Passaro Threatened to Expose the SERE-Torture Tie

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As I said in my last post on David Passaro, the only CIA guy to be prosecuted for detainee abuse, Passaro knew (or learned, in anticipation of his indictment) how to defend himself against charges stemming from torture. As I’ll show here, he was trying to expose the tie between SERE and the government’s torture program in spring 2004, long before it became public.

Passaro Prepared to Deal with Criminal Charges

As his pre-indictment lawyer described, from the time he received a target letter in February 2004 until he was arrested in June, he continued to work–with security clearance–at Fort Bragg, collecting information that might be helpful to his defense.

[H]e was gathering documents and information he felt would be helpful to his defense, which he would deliver to me, and in the event of his being charged, would see were delivered to me.

[snip]

David continued to meet with me regularly on the matter, to assemble material helpful to his defense, and to take steps to raise funds to retain counsel if he were indicted.

[snip]

Despite [knowing that an indictment was imminent, Passaro] continued to report daily to his top secret Fort Bragg post, continued to meet with [Beaver] on a weekly basis, continued to try and raise money for his defense and continued to accumulate documentary evidence to assist me in his defense.

During this period, Passaro’s lawyer tried to get discovery from the government; DOJ lawyers told him that they wouldn’t turn over information unless and until Passaro was indicted, and at that point, it would be subject to CIPA.

The Government Tried to Prevent Passaro from Using What He Knew

It appears that, after the indictment, the government worked quickly to prevent Passaro from using any of the information he had collected. The week after the indictment, the government moved to get a protective order, protecting not just classified documents, but also “any information or document … that refers to national security or intelligence matters.” More troubling, the day after the hearing on the protective order, the government got a warrant to seize a briefcase Passaro had. Passaro had said publicly that the briefcase included “legal materials.” But it took 11 months for the government to even ask the judge to check whether two manila folders inside the briefcase were protected by attorney-client privilege.

Clearly, it seems, the government was worried about that Passaro might use information he already knew.

In the months after the government moved (in June) and got (in August) this protection order, they stalled on both getting Passaro’s lawyers security clearances and on turning over any evidence to him.

Then, all of a sudden, in October, they changed their minds. When, on October 5, Passaro plead not guilty, the Court expressed some concern that the delay on clearances was impinging on Passaro’s right to a speedy trial. A week later, at a hearing on the matter, the government announced that they had decided that the trial was not a big fight over classified information after all, but instead a simple assault case. They claimed they could try it without classified information.

Passaro Used Two (Plus) of John Yoo’s Favorite Torture Defenses

And Passaro’s immediate response was, best as he could, to act on the information he had. In the first several months of November, Passaro’s legal team initiated two of the legal strategies they would try to take to the Supreme Court.

Jurisdiction: Remember that post I did showing how Jennifer Koester and John Yoo, in the early months of 2003 (that is, before Wali’s death), put together a set of Legal Principles that–among other things–said the only two crimes a CIA person conducting detainee interrogations could be convicted of were Torture and War Crimes?

CIA interrogations of foreign nationals are not within the “special maritime and territorial jurisdiction of the United States where the interrogation occurs on foreign territory in buildings that are not owned or leased by or under the legal jurisdiction of the U.S. government. The criminal laws applicable to the special maritime and territorial jurisdiction therefore do not apply to such interrogations.

Passaro argued a version of that (bmaz will elaborate in a later post), saying that the Asadabad base was outside of the maritime and territorial jurisdiction of the US, and therefore any crimes there couldn’t be prosecuted.

Public Authority Defense: This is a defense that argues that an illegal act was undertaken in response to a request from an agency of the government–a defense particularly useful to CIA people who are routinely asked to do things that violate US law. It’s slightly different from a Commander-in-Chief defense (though Passaro would try a version of that, before too long), but Passaro did invoke Bush’s authority as part of this defense. More importantly, he invoked the whole regime of authorization for torture as part of his defense (remember, the Bybee One memo was leaked in the weeks before Passaro was indicted).

Both of these defenses, notably, invoked the kind of Get Out of Jail Free Card that John Yoo and David Addington envisioned when they crafted the Bybee Memo in July 2002. Passaro knew how to say that CIA interrogators couldn’t be held responsible for crimes committed during CIA interrogations.

But Passaro did more than that. He also asked for a bunch of damning information that struck at the core of the Bush Administration’s torture regime.

Passaro Knew the Torture Program Was Based on SERE

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Court Releases Slahi Decision

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Last month, we talked about Judge James Robertson’s decision that Mohamedou Slahi should be released. Robertson’s order has now been released. I’ll have comments as I read it. But the short version is that the Government abandoned its attempt to prove (first) that Slahi had knowledge of 9/11 before it happened, and (second) that any material support he had offered al Qaeda had effectively ended by the time they picked him up.

I’ll have more as I read this, but just as a reminder, this is the guy for whom Donald Rumsfeld developed a special interrogation plan including death threats.

(And in related news, Jason Leopold got a hold of the Lawrence Wilkerson declaration regarding innocent people at Gitmo.)

Meet David Passaro, the Only CIA Guy Prosecuted for Detainee Abuse

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As I said in my last post, bmaz and I are about to let loose a slew of posts on David Passaro, the only CIA guy prosecuted for detainee abuse. I first decided to look into Passaro’s case given that he was prosecuted in relation to the death of an Afghan detainee, Ahmed Wali, in June 2004, whereas the CIA guy in charge of the Salt Pit was not prosecuted in relation to the death of Gul Rahman seven months earlier. Why, I wanted to know, was Passaro tried and convicted but Gul Rahman’s killer has, thus far, avoided any consequences for Rahman’s death.

As we’ll eventually see, Passaro’s lawyers tested many of the theories John Yoo laid out in his OLC memos.

Passaro was indicted in June 2004, not long after the Abu Ghraib scandal broke. He was tried and found guilty of assault in August 2006. He appealed his case to the Fourth Circuit, which last August rejected most of his appeal but remanded his case to the District Court for resentencing (his resentencing hearing was Wednesday and it’s quite likely his sentence will be lowered to the five years he has already served). Though Passaro appealed his case to the Supreme Court, they denied him cert. That means his case–and his failed effort to rely on some of Yoo’s theories–is legally binding for the Fourth Circuit, which just happens to cover both North Carolina (where JSOC is located) and Virginia (where CIA is located).

We’ll cover all those details in follow-up posts. In this one, I just wanted to introduce you to Passaro and the events he was convicted for.

Passaro is around 44 years old now (so was 37 when he served in Afghanistan). Though none of the court filings provide much detail about Passaro’s service, he is a former US Army Delta Special Forces medic, during which service he underwent SERE training. In 1990, he worked briefly as a cop in Hartford, CT, but got fired after being involved in a brawl (court filings mention one alleged and one other verified example of violent behavior on Passaro’s part). Ultimately, in 2002, he was hired as what is called a contract paramilitary specialist. He describes being trained in renditions–during which, playing the detainee, he underwent physical abuse–before heading to Afghanistan, but the government says he was not trained in interrogations. In Afghanistan, he worked with Afghan militia conducting patrols, gathering intelligence, and capturing “terrorists.”

Passaro started as a CIA contractor in December 2002. He arrived in Afghanistan around May 17, 2003, briefly worked somewhere else, then moved to Asadabad firebase in early June. By the time he moved to Asadabad, Passaro was reporting to a CIA field officer with no military experience and no prior foreign assignments who had arrived at Asadabad just a month before Passaro.

The Asadabad firebase is a 200 meter square mud fortress with 10-foot walls located 5 miles from the Pakistani border, northeast of Jalalabad, Afghanistan. By 2003, 225 people were stationed there, including members of the 82nd Airborne, Special Forces, CIA, CIA contractors, and (in a number of filings) people from an “Other Government Agency” that doesn’t appear to be the CIA. The firebase had been coming under rocket attacks that used white phosphorous starting in March 2003. Abdul Wali, whom Passaro was convicted of assaulting, was suspected of participating in those rocket attacks.

Passaro repeatedly pointed to some kind of classified information (probably intelligence from human sources) to support his claim that US forces knew Wali to be associated with the rocket attacks, and emphasized that Wali had been designated a force protection target before he was arrested; the government referred to him as a suspect who insisted on his innocence. On June 18, 2003, Wali turned himself into the the Americans through the intervention of the son of the Province’s governor, Hyder Akbar. No one did a medical intake exam of Wali when he turned himself in, though they did take a digital photo of him. There is some dispute over whose custody–DOD or CIA–he was in over the three days he was in US custody. In addition, there is some dispute about whether the head of the Special Forces team, Brian Halstead, or Passaro, ordered Wali to be sleep deprived and subjected to stress positions (they call the technique the “iron chair,” which is basically the kind of wall-sit you might do in a gym for very limited periods, though Wali was forced to maintain the position for an hour or more). It appears that three or four people, in addition to Passaro, interrogated Wali before his death, the identity of one which Passaro didn’t know. About 24 hours after he was detained, on June 19, Special Forces turned Wali over to the CIA; Passaro’s CIA supervisor asked him if “we wanted to take a crack at him.”

According to the government, when Passaro started questioning Wali, he told the guards, “his rules were different,” his “only rule was not to cause permanent injury.”

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“High Side” Cables and FOIA Responses

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As you’ll no doubt understand over the next week or so, bmaz and I have been comparing the case of David Passaro, the only CIA-related person to be prosecuted for detainee abuse, with what happened in Gul Rahman’s death at the Salt Pit. Passaro, a CIA contractor obviously trained in SERE-based interrogation techniques, was convicted of assaulting an Afghan, Abdul Wali, with his hand, foot, and flashlight, while interrogating him at the Asadabad firebase in Eastern Afghanistan in June 2003.

I’ll have a lot more to say about Passaro’s case in upcoming posts (short story, though, is his defense tested many of John Yoo’s favorite theories and lost). But for now, I wanted to point to two passages in this filing, which requests electronic communications evidence related to Wali’s interrogation and death. One thing it requests are transcripts of satellite phone calls from the Field.

The audio recordings and/or text documentation of the contents of satellite phone calls related to the events which prompted Wali’s surrender; his subsequent intake, detention, and questioning; his death; and all investigations into these events. Counsel for Mr. Passaro has learned that CIA operatives and contractors, members of Special Operations forces, and military intelligence unites, and members of other governmental agencies (OGA) frequently used satellite phones to communicate from this region of Afghanistan, and that the government maintains voice recordings of all satellite phone calls;

Granted, Afghanistan is apt to be more reliant on Sat Phone calls than–say–Thailand or Poland. But this request suggests there might be another set of documentation pertaining to (for example) daily authorizations for torture techniques in April and May 2002.

Then there is Passaro’s lawyer’s suggestion that the government has withheld what is called “high side” message traffic from him.

All message traffic to or from any member of a Special Ops (Special Forces, Delta Force, Navy Seals, etc.) or Military Intelligence unit, or OGA, related to the events which prompted Wali’s surrender; his subsequent intake, detention, and questioning; his death; and all investigations into these events. Counsel for Mr. Passaro has learned that members of these units [redacted] and submitted daily situation reports which detailed the detention and questioning of all detainees. Based on our review of the redacted messages the government submitted November 10, 2004, it appears that these messages–classified as “secret” and known as “low-side” traffic–originated from a member of the CIA. Message traffic to and from members of the units specified in this request were typically sent as “high-side” traffic and were sent independent from any CIA messages;

As I understand it, “high side” and “low side” refer to two different communication networks, Joint Worldwide Intelligence Communications System (JWICS) and Secret Internet Protocol Router Network (SIPRNet), respectively (I believe that’s what’s pictured in the image above). Stuff that’s Top Secret or TS/SCI has to go over the JWICS network because it’s more secure. And Passaro was complaining that he only got cables that were classified Secret, which, he suggested, meant the government had not turned over the cables that had been sent over JWICS.

Now, I’m more interested in what this means for public disclosures rather than Passaro’s case. Many of the cables we’ve seen referred to in CIA Vaughn Indices refer to Secret, not Top Secret cables. Since we’re getting just Secret cables, it suggests the possibility that we’re getting just “low side” communications, rather than the most sensitive communications.

The exception to that assertion–the one case where it appears CIA has described a whole bunch of Top Secret cables, actually raises even more concerns. The index of cables back and forth from Thailand to Langley from 2002 appears to show a batch of cables that are almost all Top Secret cables. But recall what Leon Panetta revealed in a footnote last year: that “many” of the cables were actually classified “Secret,” but that he was retroactively calling them “Top Secret.”

Then there’s the last bit, wherein cables originally classified as SECRET apparently have become TOP SECRET.

In his declaration, Panetta notes that some of the documents in the declaration were not marked properly:

Many of the operational communications were originally marked as SECRET in our communications database even though they should have been marked as TOP SECRET, and some of the miscellaneous documents were not properly marked. While we are not altering original electronic copies, this error is being corrected for copies printed for review in this case.

Given that Panetta uses the word “many,” I assume this means more than just the one operational cable from HQ to Field, dated November 30, 2002, that is marked SECRET on the CIA’s list of documents (I believe the other documents marked SECRET are what Panetta treats as “miscellaneous” documents). So, first of all, there’s the funny detail that the CIA has been representing these documents to be TOP SECRET to Judge Hellerstein since at least May 1, yet they’re only now getting around to telling him (now that they’re turning some over for his review) that they were originally actually marked SECRET.

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2005 Story: Chertoff Opposed Technique Threatening Imminent Death

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I’ve been poking DOJ’s version of the events leading up to the Bybee Memo and hope to elaborate on that at a further time. But for now, I want to point to this 2005 article, apparently attempting to scuttle Michael Chertoff’s nomination to be Secretary of Homeland Security by raising his role in approving torture (there are a couple of versions of this article, so if you’re having problems seeing what I’m looking at try this post). The article clearly states that Chertoff opposed the approval of a technique that involved the threat of immediate death.

But in other instances Mr. Chertoff opposed some aggressive procedures outright, the officials said. At one point, they said, he raised serious objections to methods that he concluded would clearly violate the torture law. While the details remain classified, one method that he opposed appeared to violate a ban in the law against using a “threat of imminent death.” [my emphasis]

We now know, of course, that CIA was trying to get mock burial approved.

This revelation is interesting because it confirms what the documentary evidence suggests: that Chertoff was one, if not the major, source of trouble for David Addington’s plan to green light torture. And given the story’s report that Chertoff approved waterboarding even while he opposed what was probably mock burial, it suggests that the problem was not necessarily Chertoff’s squeamishness, but rather Ali Soufan’s reaction, when the torturers first threatened to use mock burial in May 2002, that it was torture. Furthermore, all of this accords with the work I’ve done on the role of the July 13 memo, which shows that CIA had an “issue arise” in response to which they got John Yoo write a memo excusing things like death threats (but also disruption of the senses) by invoking expert advice.

The story is interesting for other reasons, including its fairly early reference to SERE’s role in the torture techniques.

Many of the interrogation techniques in the C.I.A.’s list were adopted from the Air Force’s Survival, Evasion, Rescue, and Escape training program.

But for the moment, I’m just noting it because it does seem to confirm the narrative we’re seeing in the documentary evidence.

Salt Pit Victim, Gul Rahman, Once Rescued Hamid Karzai

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In a follow-up on its story on Gul Rahman’s death in the Salt Pit in November 2002, AP reports that Rahman may have rescued Hamid Karzai from imprisonment by Afghan intelligence in 1994.

After Soviet forces withdrew in 1989, Afghanistan descended into civil war as the Islamic groups that ousted the Soviets fought each other for control of the capital, Kabul.

During fighting in 1994, Karzai, then deputy foreign minister, was arrested by Afghan intelligence, by some accounts because he was in contact with Hekmatyar and other militia leaders to end the conflict.

[snip]

According to Habib Rahman, his brother, Gul Rahman was sent to fetch Karzai by Hekmatyar, whose forces had long been suspected of firing the rockets at the building. Gul Rahman carried a letter for Karzai from Hekmatyar, saying he had been sent to rescue him at the request of Karzai’s father, the brother said.

Habib Rahman said his brother took Karzai to a safe house in Kabul, then drove with him to the Pakistani city of Peshawar, where Karzai was hospitalized for two days.

Mind you, this story is based on what Gulbuddin Hekmatyar and Rahman’s brother, Habib, say; Karzai has refused to comment on the story. Hekmatyar raised the incident last year to criticize Karzai. And Hekmatyar, who is back in negotiations with Karzai at the moment, may have his own reasons to escalate this story.

Nevertheless, given the claims that DOJ avoided charging anyone in Rahman’s death because it claimed the US did not control the Salt Pit when he died, the story adds an extra level of irony and legal intrigue.

The Salt Pit was the top-secret name for an abandoned brick factory, a warehouse just north of the Kabul business district that the CIA began using shortly after the United States invaded Afghanistan in October 2001. The 10-acre facility included a three-story building, eventually used by the U.S. military to train the Afghan counterterrorism force, and several smaller buildings, which were off-limits to all but the CIA and a handful of Afghan guards and cooks who ran the prison, said several current and former military and intelligence officers.

The CIA wanted the Salt Pit to be a “host-nation facility,” an Afghan prison with Afghan guards. Its designation as an Afghan facility was intended to give U.S. personnel some insulation from actions taken by Afghan guards inside, a tactic used in secret CIA prisons in other countries, former and current CIA officials said.

The CIA, however, paid the entire cost of maintaining the facility, including the electricity, food and salaries for the guards, who were all vetted by agency personnel. The CIA also decided who would be kept inside, including some “high-value targets,” senior al Qaeda leaders in transit to other, more secure secret CIA prisons.

“We financed it, but it was an Afghan deal,” one U.S. intelligence officer said.

In spring 2004, when the CIA first referred the Salt Pit case to the Justice Department for possible prosecution, the department cited the prison’s status as a foreign facility, outside the jurisdiction of the U.S. government, as one reason for declining to prosecute, U.S. government officials aware of the decision said.

Karzai was Interim President when Rahman died. Either his Administration or the US was in charge of the prison. If the US was in charge, then Rahman’s death can be prosecuted. If Karzai’s Administration was in charge, then he bears legal responsibility for his rescuer’s death.

And I would imagine Hekmatyar is well aware of this dynamic.