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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.

How CIA Avoided Negligent Homicide Charges in the Salt Pit Killing

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Since the AP story on the Salt Pit death, reporters have focused a lot of attention to a particular footnote in Jay Bybee’s second response to the OPR Report and what it claims about intent (and, to a lesser degree, what it says about Jay Bybee’s fitness to remain on the 9th Circuit). In it, Jay Bybee references a memo CIA’s Counterterrorism Center wrote in response to Gul Rahman’s death at the Salt Pit; the memo argued that the CIA officer in charge should not be prosecuted under the torture statute because he did not have the specific intent to make Rahman suffer severe pain when he doused him with water and left him exposed in freezing temperatures.

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

As Scott Horton noted the other day, analysis of the torture statute should not have been the only thing in the declination memo. Prosecutors should have analyzed whether or not Rahman’s killing constituted negligent homicide, among other things.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge.

But the OPR Report and the Legal Principles/Bullet Points documents it describes may explain why this didn’t happen. The Legal Principles/Bullet Points document shows that CIA claimed–possibly, with the tacit approval of the Principals Committee–that the only two criminal statutes that could be applied to its interrogation program were the Torture Statute and the War Crimes Statute.

As a threshold matter, Horton appears to be misstating what the declination memo described in the footnote is and–more importantly–who wrote it. “Politically loyal US Attorneys” did not write the declination described here. Some lawyer at CIA’s CTC wrote it. That’s because, as the OPR Report explains in the section preceding the entirely redacted passage that discusses this letter (the declination letter appears on PDF 98, which appears in the same section as the following quotes from pages PDF 96 and 97), DOJ told CIA to go collect facts about the abuses they reported in January 2003 (which include the Salt Pit killing and threats of death used with Rahim al-Nashiri) themselves.

According to a CIA MFR drafted by John Rizzo on January 24,2003, Scott Muller (then CIA General Counsel), Rizzo and [redacted] met with Michael Chertoff Alice Fisher, John Yoo, and [redacted–probably Jennifer Koester] to discuss the incidents at [redacted]. According to Rizzo, he told Chertoff before the meeting that he needed to discuss “a recent incident where CIA personnel apparently employed unauthorized interrogation techniques on a detainee.”

[snip]

Chertoff reportedly commented that the CIA was correct to advise them because the use of a weapon to frighten a detainee could have violated the law. He stated that the Department would let CIA OIG develop the facts and that DOJ would determine what action to take when the facts were known. According to Rizzo, “Chertoff expressed no interest or intention to pursue the matter of the [redacted].

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and told him that the CIA OIG was looking into the [redacted] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they felt they do not need to be involved until after the OIG report is completed.” Rizzo responded to Helgerson: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts that you gather and present to them.”

Alerted that, in the course of interrogating detainees, CIA had killed one and threatened to kill another detainee, DOJ’s first response (at least according to two different CIA versions of what happened) was to tell CIA to go collect information on the events themselves. Only after CIA finished investigating and presented the facts of the case would DOJ weigh in on whether a crime had been committed.

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Steven Kappes and Ibn Sheikh al-Libi

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Jeff Stein has a long profile of Steven Kappes in the Washingtonian that challenges Kappes’ reputation for competence. For example, he points out how Kappes tried to get Jeff Castelli–the guy in charge of the notoriously incompetent Abu Omar rendition–placed in charge of CIA’s NY office. And he describes how Kappes helped the officer in charge of the Salt Pit prison avoid accountability for killing Gul Rahman.

But I’m particularly interested in two details, and the implications of them. Stein reminds us that, during the Obama transition period, Kappes tried to retain CIA’s ability to torture.

When Obama’s intelligence transition team had visited Langley, it had gotten a pitch from Kappes and other CIA officials to “retain the option of reestablishing secret prisons and using aggressive interrogation methods,” according to an anecdote buried in a Washington Post story.

“It was one of the most deeply disturbing experiences I have had,” David Boren, the moderate Oklahoma Democrat and former Senate Intelligence committee chair who led the transition team, told the Post.

Now couple that with Stein’s description of the earliest negotiations between Libya and the US.

In March 2003, leader Muammar Qaddafi signaled that he was ready to jump-start his on-again, off-again campaign to end his long diplomatic and commercial isolation, get off Washington’s list of terrorist states, and get back into the oil business with the West. Two years earlier, he’d dispatched one of his top operatives, Michigan State–educated Mousa Kousa, to a clandestine meeting in London with top CIA and British intelligence officials. Kousa carried with him the names of some of Osama bin Laden’s closest associates, including Ibn al-Sheikh al-Libi, a Libyan who would soon be the first major catch in the CIA’s pursuit of al-Qaeda. But with Qaddafi dragging his feet on final payouts over Libya’s 1988 downing of PanAm Flight 103 over Lockerbie, Scotland, negotiations stalled. [my emphasis]

Stein’s revelation that Qaddafi tried to get back in the good graces of the US by providing information on bin Laden’s associates is news to me. But I’m particularly intrigued that Kousa claimed that Ibn Sheikh al-Libi was one of “Osama bin Laden’s closest associates.”

He wasn’t (though he was “close” to al Qaeda).

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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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